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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISIDCTION

CIVIL APPEAL NOS. 6203-6204__OF 2016 (Arising out of SLP(C) Nos. 1259-1260 of 2016)

Nabam Rebia, and Bamang Felix … Appellants

versus

Deputy Speaker and others … Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. Leave granted.

2. The  5th  session  of  the  Arunachal  Pradesh  Legislative  Assembly

(hereinafter  referred  to  as,  the  Assembly/House)  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 at Naharlagun.  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 inter alia 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 learned senior

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counsel for the appellants, demonstrate an extraneous and inappropriate

exercise of constitutional authority.  The above 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.

3. When hearing in these appeals commenced, the impression given out

was, that the sequence of facts relating to the affairs of the House and the

MLAs,  by  itself  would  be  sufficient  to  establish,  that  constitutional

responsibilities were exercised in such manner, as would be sufficient for

this Court to strike down the same.  The same position was espoused on

behalf of the respondents, who also advocated that the factual background,

would  establish  the  legal  and  constitutional  validity  of  the  Governor’s

actions.  And also, that the Governor had passed the impugned order, and

issued the impugned message,  bona fide.  The narration of facts, therefore

assumes significance.

The foundation of the appellants case:

The first sequence of facts:

4. In order to project the correct narrative (as per the understanding, of

learned  counsel,  representing  the  appellants),  towards  highlighting  the

factual position, it was urged, that the political posturing in the State of

Arunachal Pradesh, commenced after the Governor – Jyoti Prasad Rajkhowa

assumed charge on 1.6.2015.   

5. It was suggested, that when the Governor assumed office, there was a

brewing discord amongst members of the ruling Indian National Congress

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(hereinafter referred to as the INC). Only a few days after the Governor took

over charge, the President of the Arunachal Pradesh Congress Committee –

Padi  Richo  addressed  his  first  communication  to  the  Chief  Minister  –

Nabam Tuki (on 18.6.2015), inviting his attention to reports received from

party workers,  regarding breach of  party discipline.   On the same lines,

another letter was addressed by the party President, to the Chief Minister

on 1.9.2015.  The text of the same is extracted hereunder:

“In  reference  to  my  earlier  letter  no.nil  dated  18/6/2015  in connection with reports received from party workers regarding breach of  discipline  by  some  of  the  Congress  legislators  by  their  active involvement in anti-party activities, which has been seriously viewed by the AICC and APCC.  But despite of that, it has been reported by party functionaries and workers that some of the congress legislators are  still  actively  indulging  in  indiscipline  and  various  anti-party activities. Therefore,  all  the  Congress  legislators  are  requested  to  refrain themselves from indulging in such anti-party activities and maintain party discipline.”  

6. It  was submitted, that strenuous efforts were ongoing, to quell  the

intra-party dissidence.  It was asserted, that resignation letters of two MLAs

belonging  to  the  INC  –  Wanglam  Sawin  and  Gabriel  D.  Wangsu  were

accepted on 6.10.2015, whereupon, they stood removed from the House.

The  details  of  the  ongoing  disruptive  activities  within  the  Congress

Legislature Party, as also, the involvement of the Governor, was sought to

be demonstrated, by placing reliance on two further communications, the

first of which (dated 11.10.2015), was addressed by the removed MLAs, to

the Governor.  A relevant part of the same, is reproduced hereunder:

“Sub: Commission of an enquiry into the forceful resignation. Your Excellency, With  great  pain  and  indignation,  we  the  undersigned  Members  of Legislative  Assembly  of  the  Sixth  Arunachal  Pradesh  Legislative

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Assembly  would  like  to  apprise  your benign authority  about  some disturbing,  degraded  and  inglorious  conduct  of  the  leader  of  the Congress  Legislative  Party-cum-incumbent  Chief  Minister  and  his supporters for favour of your kind information and necessary action please; Your  Excellency,  on  14th Sept  2015  at  around  5  pm,  we  were repeatedly  informed  through  phone  calls  requesting  us  to  join  “a get-together dinner party”, purportedly on the invitation of Mr. Mama Natung, HMLA, at his residence at Senki View area, Itanagar.  Some 18 MLA colleagues from the Congress Party visited his residence for the dinner but were instead asked to join an informal discussion on the  prevailing  political  crisis  faced  by  the  Congress  led  State Government under the Chief  Ministership of Mr. Nabam Tuki.   All members  participated  in  the  discussion  which  revolved  around support for Mr. Tuki and further the issue of initiating actions against any member  not  adhering  to  the decision to  be loyal  to  Tuki  was discussed.  Also  it  was  decided  to  form  a  group  of  ‘like-minded’ legislators and accordingly formed S-18 or Super-18, besides forming one Action Committee tasked to take necessary actions against those MLAs who do not abide by the decisions taken jointly by the group. Thereafter, we had our dinner and left. Your Excellency, on 16th September’ 2015, we were informed by Mr. Nyamar  Karbak,  MLA  who  was  the  coordinator  of  S-18  to  join  a dinner party at the official  residence of  Hon’ble Chief  Minister  Mr. Nabam Tuki.  Like the other day, this time also 17 of us went together to  attend the  dinner  hosted  by  the  Chief  Minister  which amongst other  included,  i)  Gabriel  D.Wangsu,  ii)  Mr.  Wanglam  Sawin,  iii) Phurpa Tsering,  iv)  Mr.  Jambey Tashi,  v)  Mr.  Tirong Aboh, vi)  Mr. Dikto Yikar, vii) Mr. Mama Natung, viii) Mr. Pani Taram, ix) Mr. Nikh Kamin, x) Mr. Nyamar Karbak, xi) Mr. Bamang Felix, xii) Mr. Techi Kaso, xiii) Mr. Tatung Jamoh, xiv) Mr.Alo Libang, xv) Mr. Tapuk Taku, xvi) Kumsi Sidisow, xvii) Mrs. Karya Bagang. Like the preceding night, some of the MLAs like Mr. Nyamar Karbak, Mr. Bamang Felix, Mr. Mama Natung and Mr. Nikh Kamen suddenly started discussion on the political matter and requested 17 of us to support Tuki and to protect his leadership from being ousted by the dissident  group of  the  party.   Most  of  us  participated in  the  said discussion though reluctantly with certain reservations in our mind and heart.  The gathering instead of being a dinner party was turning more into  a  political  meeting and some MLAs,  to  our anxiety  and panic,  aggressively  tried to persuade and prevail  upon us thereby, putting all of us in a very stressful and awkward situation.  There was little room left for further discussion or dissent. Thereafter,  some  of  our  MLA  colleagues  came  up  with  a  strange proposal to sign and submit irrevocable resignation letter in the hand of HCM to show our loyalty to his leadership.  We were baffled and dumbstruck  by  hearing  the  undemocratic,  dangerous  and inappropriate proposition placed before us by him.  All  of us were

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confused and couldn’t gather the courage to protest against the said proposal in the presence of the CM, Speaker of the Assembly and PCC president.   Then some of the loyalists  of Mr. Tuki namely Nyamar Karbak  and  Bamang  Felix  holding  ready  and  prepared  stereotype resignation letters in their hands came to us and handed over to each of us and asked us to put our signatures.  The whole drama took place  in  presence  of  Mr.  Nabam  Tuki,  CM  and  Mr.  Padi  Richo, President, Pradesh Congress Committee and putting us in strained mental  torment  and  duress  compelled  us  to  hurriedly  sign  the resignation letter without even reading the content thereon, against our will and against the spirit of democracy.  After getting us to sign the  papers  they  collected  the  same and handed over  to  the  Chief Minister Mr. Nabam Tuki. Furthermore,  we were  given strict  instruction and direction not  to mention the date in our signatures.  And just before the dinner, after concluding  the  meeting  and  signing  of  the  resignation  letters, surprisingly Speaker Nabam Rebia to arrived and joined in the dinner party at the CM’s official residence.  Soon thereafter a group namely ‘S-18’  was  formed  in  the  Whatsapp.   However,  both  of  us  were removed from the group on 6th October 2015. Now under the above circumstances, we would like to inform you that those resignation letters were signed by all 17 of us under complete duress having obtained illegally and wrongfully.  In this regard, the following arguments may be taken into considerations; i) That we were invited to attend an informal dinner party hosted by the HCM for 17 of us.   It  was neither a CLP meeting nor a party meeting to discuss politics as only 17 of us were invited for the dinner at the official bungalow of the HCM.  It is equally true that we were invited for a dinner and not for signing our own resignation letters. ii) That none of us could muster the courage and spirit to protest the unholy and vicious agenda of the HCM that too in his presence and that  of  the  Speaker,  both  holding  high  constitutional  posts,  and President, PCC. iii)  That all  the resignation letters signed by us were stereotype or identical copies of one single letter which speaks volume about the dishonest intention of the HCM, Speaker and his supporters as he was ready with the resignation letters which again established that everything was planned before hand with the help and support of the Speaker of the Legislative Assembly to obtain our signatures in the resignation  letters  by  hook  or  crook  and  instill  fear  in  our  mind. Invitation to the dinner party was only a ploy to trap us in the larger game plan to secure the Chief Ministerial Chair. iv) These disgracing, undemocratic and unethical action has brought disgrace to the benign office of the Chief Minister and the Speaker as their conduct are completely unbecoming of a Chief Minister as well as  for  holding  the  prestigious  and  dignified  chair  of  the  Speaker. Their illegal and wrongful act of obtaining our signatures by putting us  in  duress  is  nothing  but  criminalization  of  politics  and  brute

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murder of democracy and its values and principles for their vested personal interest which is punishable under relevant law of the land. v) If an elected representative is not allowed to take any decision out of his conscience and free will it tantamounts to murder of the very basic fabric of democracy which will bear negative impact in overall contribution to the state’s governance, and above all that would be murder of democracy. vi)  The  reason  quoted  in  the  resignation  letter  is  also  highly inconceivable and ludicrous.  How could any elected representative including  us  after  being  elected  by  the  people  would  tender  the resignation on such irrational, unjust and unfounded ground. Your Excellency, vide our letter dated 01-10-2015 addressed to the Speaker of the  Legislative Assembly which we had submitted to the office of the Speaker on 05-10-2015 before noon, we have elucidated the  facts  and  circumstances  under  which  our  signatures  in  the resignation  letters  were  obtained  on  16-09-2015  at  the  official bungalow  of  CM  and  that  the  same  was  obtained  under  duress against our consent and free will, therefore requested the Speaker not to accept the resignation letter and to treat the same as invalid, null and  void  until  and  unless  we  come  in  person  to  submit  the resignation letters. However,  ironically,  after  submission  of  our  letter,  it  came to  our knowledge that the Speaker had without following the provisions as enshrined in Article 190(3)(b) of the Constitution and Rule 200(2) of the Rules of Procedure and Conduct of Business in the Arunachal Pradesh Legislative  Assembly had purportedly issued a notification dated  01-10-2015  accepting  our  resignation  and  declaring  our respective  seats  to  have  fallen  vacant.   The  said  notification  was published  in  the  evening  of  05-10-2015  only  immediately  after submission of our withdrawal letters to the Speaker. Article 190(3)(b) of the Constitution reads as follows;

xxx xxx xxx Rule 200(3) of the Business Rules reads as follows;

xxx xxx xxx Thus,  the  abovementioned  provisions  casts  an  obligation  on  the Speaker  to  make  inquiry  regarding  the  voluntariness  and genuineness of the resignation letters when the resignation letters are not submitted in person but since the Speaker himself is a party to the whole episode playing hand in glove with the CM, therefore, he choose to do away with the laid provisions of the law.

xxx xxx xxx Your Excellency, since the notification dated 01-10-2015 was issued by the Speaker without following the established principles, therefore we had approached the Hon’ble Gauhati High Court challenging the said  notification  vide  WP  (C)  No.6193/2015.  The  Hon’ble  Gauhati High Court after considering the whole facts and circumstances of the case  was inter-alia  pleased to  stay  the  operation  of  the  impugned notification  dated  01-10-2015  vide  order  dated  07-10-2015.   The

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Hon’ble Court further observed that prima-facie the requirement of Rule  200(3)  of  the  Procedure  and  Conduct  of  Business  and  the incorporated proviso to Article  190(3)(b)  of  the Constitution do not seem to have been complied and directed the Election Commission not to take any action on the basis of the said notification.

xxx xxx xxx Your Excellency, along with us, 15 other MLAs had also signed the resignation  letters  and  handed  over  the  same  to  the  CM  in  the presence of the PCC Chief, but why only our resignation letters were entertained and accepted by  the  Speaker.   What  happened to  the other resignation letters signed by 15 other MLAs?  Why no action has been taken till date on the resignation letters of other 15 MLAs who till date has not withdrawn their resignation letters?

xxx xxx xxx We, therefore, request your Excellency to look into the issue seriously to unearth the unholy nexus between the Chief Minister, the Speaker of the Legislative Assembly and PCC, President.  And why the Chief Minister has adopted such wrongful and illegal means to obtain the resignation  letters  from  us,  and  what  compelled  him  for  such  a criminal act is the million dollar question. In view of the above facts and circumstances, it is our humble request to  your  august  office  to  immediately  enquire  into  the  whole resignation  incident  through  independent  investigating  agency  like CBI because both the culprits are holding high constitutional posts, i.e.  Chief  Minister  and Speaker  and there  cannot  be  free  and fair investigation, if conducted by the State Investigation agency and take stringent action against all the persons involved in the whole crime by booking each and everyone under appropriate provision of law.”

According to learned counsel, it is shocking and distressing, that the above

letter  should have been addressed to  the Governor,  who has no role  in

intra-party  affairs.  The above letter  and inferences,  according to learned

counsel, were suggestive of political motivation.  The second communication

dated 11.10.2015 was addressed (to the Governor) by 20 MLAs of the INC,

jointly  with  two  Independent  MLAs.   A  relevant  extract  of  the  instant

communication is reproduced below:  

“Sub:  Complaint  against  the  policy  of  absolutism  of  the  Chief Minister. Your Excellency, We the incumbent MLAs of INC party amongst them some are sitting Ministers  in  the  present  ruling  dispensation  of  the  State  being

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perturbed and disillusioned with the current dismal and grim state of affairs of the State Government and the tyrannical style of incumbent Chief  Minister  Shri Nabam Tuki in running the government would with profound veneration most humbly like to state the following few lines for favour of your perusal and necessary appropriate action; His Excellency, it has been learnt through the print media that the Chief  Minister  is  contemplating  to  literally  drop  four  veteran, experienced and highly  regarded leaders  like  i)  Mr.  Chowna Mein, Agriculture Minister, ii) Mr. Kamlung Mossang, Food & Civil Supply Minister, iii) Mr. Kumar Wai, Cooperation Minister and Mr. Wanglin Lowangdong,  Social  Welfare  Minister  from  the  council  of  Minister without articulating any cogent reasons either implicit or explicit for taking  such  a  drastic  and  unpleasant  measure at  this  particular junction when the State is experiencing acute financial crisis having occasioned due to the misrule, shortsightedness, autocratic policies and wrong decisions of the incumbent Chief  Minister coupled with excessive  unplanned,  wasteful  expenditures  and  financial mismanagement  leading  the  state  to  a  complete  stalemate  with development  activities  in  the  State  in  a  complete  standstill  and clouding the State with complete darkness of financial depression. His Excellency, your benign authority may be well aware of the fact that the State under the leadership of Mr. Nabam Tuki, CM has been reeling  under  the  burden  of  humongous  financial  liabilities, insurmountable debts and burden of overdrafts for last 3 years due to gross  and  unprecedented  level  of  corruption,  fraudulent misappropriation and embezzlement of the project specific funds and revenues of the government. His Excellency, it is very unfortunate that there are serious charges of criminal misconduct,  nepotism and corruption against Shri Nabam Tuki on numerous counts which are as follows; 1) Awarding contract to his family and relatives by abusing his power

and position without floating tenders and secured pecuniary gain by  illegal  and  dishonest  means  in  clear  violation  of  codal formalities.  The Hon’ble Gauhati High Court taking cognizance of the  allegations  against  Nabam  Tuki,  CM  vide  Judgement  and Order dated 21-08-2015 in WP (C) No. 1267/2010 has directed the CBI to register a case and conduct investigation against the alleged misconduct of Shri Nabam Tuki in awarding contracts to his wife, sister-in-law,  brother  and  other  near  relatives  without  calling tenders by abusing his official position as a Minister.  The Hon’ble Court also directed the CBI to probe and investigate the alleged UCO bank transaction of Rs.30,00,000/- (Rupees Thirty Lacs) only allegedly deposited in the account number of Mr. Nabam Tuki by Mr. N.N. Osik, the then Director of Food & Civil Supplies.

2) Serious allegation against the incumbent CM who also holds the charges of Finance, Planning and Disaster & Relief Ministries for gross  misuse  and  embezzlement  of  relief  funds  under  NDRF & SDRF.  In this connection also two PILs are pending in the Hon’ble

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Gauhati  High  Court  being  numbered  as  PIL  No.  62/2015  & 65/2015 and vide order dated 06/08/2015 the Hon’ble Gauhati High Court was pleased to admit both the PILs by rejecting the preliminary objection   of  the  State  Government on the issue of maintainability of the cases and made an observation that “there appears  to  be  some  prima  facie  case  to  be  enquired  into  the justification of the State in making assessments regarding natural disaster”. In this connection the Controller and Auditor General of India is also conducting an enquiry into the allegation.

3) Gross  misuse  and  siphoning  of  project  specific  funds  under Centrally Sponsored Scheme (CSS) as a result of which majority of the  projects  or  works  under  abovementioned  schemes  has  not been completed and/or are under progress.  Worst some have even not  been  commenced  and  will  never  see  the  light  of  the  day because all the grant and assistance provided by the GOI has been whimsically  and  capriciously  diverted  and  misused  under Non-Plan  head  and  PDS.   Though  majority  of  the  works  and projects  has  not  been  completed  but  the  funds  have  been completely exhausted creating colossal financial liabilities to the tune of Rs.6911.55 Crores.  That is the sole reason, why the state government is unable to furnish the UC as demanded by the GOI. The Ministry of DONER has instituted an enquiry to unearth the degree of corruption.

4) The State Government is reeling under the burden of overdraft for consecutively two years.  The Government committed an overdraft of Rs.(-) 449.76 Crores during 2013-14 and Rs. (-) 581.38 Crores during last financial year 2014-15.  The current overdraft till May’ 2015 is Rs. (-) 222 Crores bringing the total overdraft to the tune of  Rs.  (-)  1,253.14  Crores.   The  amount  of  overdraft  are  to  be repaid by the State government to the RBI with 13% interest rate which  in  turn  will  affect  the  development  of  the  State,  as  the Government  will  be  forced  to  utilize  the  plan  money  for  the repayment of the overdraft.

Your  Excellency,  overdraft,  suspension  of  government  bank transactions,  inordinate  delay  in  disbursement  of  pension,  GPF, TA/DA and other benefits to the government employees, transfer of funds in the civil deposits of the government, non-payment of bills to the  contractors  and  suppliers  against  the  completed  works  and non-payment of stipend to the students has become an order of the day. Your Excellency, Shri Nabam Tuki, CM is adopting all sorts of illegal and unlawful means in order to quell and crush the voices of dissent who having been disillusioned and disenchanted with  his  misdeed and  style  of  running  the  State  Government  in  a  despotic  and autocratic manner has intensified their demand in recent days for a change  in  the  leadership.   He  is  even  indulging  in  criminal  and immoral  activities  to  secure  his  Chief  Ministerial  post.   It  is  very disheartening that Shri Nabam Tuki, CM with the support of handful

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of his protagonist invited 17 MLA’s for a dinner party at his official bungalow and has forcefully obtained signatures of the 17 MLA’s in a resignation letters authored and produced at his residence by putting them under intense duress and pressure with the objective to use the same  as  a  tool  to  blackmail  them  not  to  shift  their  loyalty  or allegiance.

xxx xxx xxx 7. Your  Excellency,  in  a  democratic  and  parliamentary  form  of government, the legislators of the single largest party in the legislative assembly select  a  leader amongst  themselves  to  lead them who is called  as  a  leader  of  the  legislative  party  and  the  selected  leader accordingly becomes the Chief Minister and forms a government.  If the  leader  upon  being  selected  loses  the  goodwill,  trust  and confidence of the legislators who have selected him, the legislators can change or replace the said leader with more efficient, capable and competent leader to run the government.  In context to the present prevailing political scenario of the State the CM has lost the goodwill, trust and confidence of majority of the legislators which can gauged from the CLP meeting which was held on 29-09-2015 where only 22 party  legislators  attended  the  meeting.   Immediately  thereafter  a Cabinet was also summoned by the CM and similarly the meeting not attended by majority of the Cabinet Ministers and was less than the necessary quorum for taking any major decisions, therefore, it is the CM  who  should  be  tendering  his  resignation  papers  rather  than dropping highly respected and decorated sitting Ministers who have serving the State to the best of their capability and capacity without any complaint or blemish on their integrity.

xxx xxx xxx Therefore, in view of the above facts and circumstances of the case, it is our collective earnest request and appeal to your esteemed office not to entertain the decision of the incumbent CM as he is running a minority  government  and  enjoys  the  support  of  only  handful  of legislators as he has lost the confidence and goodwill of the majority of  the  legislators.   If  the  CM  is  allowed  to  prevail  then  it  will tantamount  to  murder  of  democracy  and  parliamentary  form  of government. With regards,

signed by 20 INC MLAs and  2 Independent MLAs. Yours faithfully,”

It was submitted, that despite the position being clear, that a Governor has

no role in internal party feuds, details  as noticed in the letter  extracted

above, were being provided to the Governor.  Illustratively it was submitted,

that the manner of functioning of the Chief Minister, or the likely change in

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the composition of the Cabinet, or the manner in which financial affairs of

the State were being handled, or the prevailing allegations of  corruption

against the Government, and such like matters, are beyond the realm of

cognition and responsibility of the Governor.  And yet, were being brought

to the notice of the Governor.  It was urged, that all this was being done,

because of the belief of the dissident faction, that the Governor would act

thereon.   This,  because  of  the tacit  support,  by  MLAs belonging  to  the

Bharatiya  Janata  Party  (hereinafter  referred  to  as,  ‘the  BJP’).  It  was

highlighted, that the involvement of two Independent MLAs along with 20

MLAs of the INC, in the letter dated 11.10.2015, needed to be pointedly

noticed.  Because it demonstrates, not only dissension within the party, but

also the involvement of support from outsiders.  The connotations of the

above second letter, according to learned counsel, were also suggestive of

political motivation.

7. Having  highlighted  the  alleged  divisive  activities  of  the  breakaway

group of MLAs within the INC, itz was submitted, that the party President –

Padi Richo, was right in perceiving,  that the above actions amounted to

breach  of  party  discipline.   The  party  President  accordingly,  addressed

individual  communications  dated  12.10.2015,  to  the  defaulting  MLAs,

wherein he brought to their attention, the party’s impressions. A relevant

extract of one of the said communications is being reproduced hereunder:

“It  has  been  reported  by  party  functionaries  and  workers  of  your constituency and the Block/District Congress Committee that you are indulging in various activities which amounts to breach of discipline of the Party under Claus 4(a), (b) and (c) of the Constitution of Indian National Congress.  In this connection I have also issued a Circular to all Party MLAs and Leaders on 1st September 2015 making it clear

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that  action  will  be  taken  against  any  such  leader  indulging  in indiscipline and anti-party activities. The matter was placed before the Executive Committee of the PCC on 6  th   October 2015 and the Committee is of the view that there is a prima facie breach of discipline from your side.  You are hereby called upon to explain the charges made against you within 15 days time as to why disciplinary action as it  may deem fit  is  not taken against you.” Your failure to reply within the above stated time will be considered as that you have no explanation or reply to be given, and appropriate action as deemed fit, will be taken against you without any further notice.”

8. At  the  instant  juncture,  a  meeting  inviting  all  members  of  the

Congress Legislature Party was convened for 8.11.2015, which was to be

attended by representatives  of  the central  leadership.   An extract  of  the

communication dated 5.11.2015, calling the above meeting, is reproduced

below:

“No.CM(AP  –  11/2015  dtd  05th Nov,  2015[:]  Please  convey  the following message by quickest means as under[.] quote[.]  From Shri Nabam  Tuki,  Chief  Minister  to  all  Congress  MLAS/Parliamentary Secretaries/Ministers[.]   As  directed  by  Shri  V.  Narayanasami, General Secretary, AICC, In-Charge, Arunachal Pradesh a meeting of all  members  of  Congress  Legislature  Party  (CLP)  convened  on  8  th November,  2015(Sunday)  at  4.30  PM repeat  8  th   November,2015  at 4.30  PM  at  Rajiv  Gandhi  Bhawan,  Itanagar[.]  Meeting  will  be attended by [.] One[.] Shri V Narayanasami, General Secretary, AICC, In Charge[.]   Two[.]  Dr. Jayakumar, AICC Secretary,[.]  Three[.]  Shri Padi  Richo,  President  PCC  among  others[.]  Request  to  attend  the meeting as directed by Shri V Narayanasami, GS, AICC positively[.] unquote[.] Plse confirm N.T.T.”

Immediately on receipt of the aforesaid invitation, the same 21 dissident

MLAs, addressed a joint statement to the party leadership, that they would

not  be  attending  the  meeting  (scheduled  for  8.11.2015),  as  the  Chief

Minister – Nabam Tuki had lost all moral credibility to lead the House.  An

extract of the contents of above joint assertion is reproduced below:

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“…It has come to our notice that a CLP meeting has been convened on 8th November 2015.  There are already differences of opinion with regards  to  autocratic  way  of  functioning  and  disrespect  for  inner democracy of the party with the present CLP leader Mr. Nabam Tuki. Were  clearly  denounce  his  legitimacy  as  the  leader  of  Congress Legislature Party of Arunachal Pradesh.  Under this circumstances any meeting called under his leadership do not carry any substance and holds no water.  He has lost all the moral credibility to lead the party in the house. Therefore,  we the undersigned Congress legislature party  members have  unanimously  decided  not  to  attend  the  CLP  meeting  called under the leadership of Mr. Nabum Tuki.”

signed by 21 MLAs of the INC.

9. On 12.10.2015, the President of the Congress Legislature Party issued

a show cause notice  to  19 MLAs belonging to  the  INC,  for  indulging in

activities, indicative of breach of sincerity and commitment towards the INC.

Another communication was also issued to all MLAs belonging to the INC,

to  attend  a  party  meeting,  at  the  residence  of  the  leader  of  Congress

Legislature Party.  It was submitted, that the same 21 legislators belonging

to the INC again addressed a joint statement to the Chief Minister, wherein

they contested his legitimacy, as leader of the INC.  The said legislators,

again refused to attend the meeting.   They also issued a press note,  to

openly announce their aforesaid stance.  In a meeting held on 8.11.2015,

the central leadership of  the Congress Party affirmed, its  support to  the

Chief Minister – Nabam Tuki.  It was pointed out, that thereafter, another

notice was issued for holding a meeting of the legislators, belonging to the

INC,  on 18.11.2015.   Yet  again,  the  same 21 MLAs did  not  attend  the

meeting, and reiterated their point of view, with reference to the leadership

of the Chief Minister.  It was asserted on behalf of the appellants, that this

was a revolt of sorts, within the INC.   

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10. In  their  narration,  learned  counsel  also  pointed  out,  that  on

16.11.2015, a notice of resolution for the removal of the Deputy Speaker –

Tenzing Norbu Thongdok, was moved.  The same was allegedly moved by 16

MLAs,  belonging  to  the  INC.   As  a  matter  of  clarification,  it  would  be

pertinent to mention, that the Deputy Speaker had been elected as an MLA,

on the nomination of the INC.  

11. On 19.11.2015, a notice of resolution for the removal of the Speaker

of the Assembly – Nabam Rebia, was moved by the 13 MLAs – 11 belonging

to the BJP, and 2 Independent MLAs.  It was submitted, that the aforesaid

notice was issued under Article 179(c) read with Article 181, and Rules 151

and  154  of  the  Rules  of  Procedure  and  Conduct  of  Business  of  the

Arunachal  Pradesh  Legislative  Assembly,  framed  under  Article  208

(hereinafter referred to as,  the ‘Conduct of  Business Rules’).   The notice

depicted the following grounds for the removal of the Speaker:

“(i) The Constitution and democracy are not safe in the hands of the Speaker, as he has unseated two members of the Arunachal Pradesh Legislative Assembly; (ii) That he has flagrantly violated the Constitution; (iii) That Speaker has not been functioning as a neutral person; (iv)  That the Speaker has been appointing secretarial staff/persons without following administrative procedure.”

12. Yet  another  meeting  of  MLAs  belonging  to  the  INC,  was  held  on

18.11.2015.  The allegedly errant 21 MLAs belonging to the INC, did not

again attend the meeting.  It was asserted, that in order to take stock of the

ongoing  activities  of  the  21  dissident  MLAs,  another  meeting  of  the

Congress Legislature Party was held on 3.12.2015, wherein the participants

took note of the prevailing situation, by recording the following proceedings:

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“This meeting of the Congress Legislature Party, Arunachal Pradesh, held on today, the 3  rd   December at 4.00 P.M. at Itanagar unanimously resolves  to  request  the  Party  Leadership  and  the  Congress  High Command at Delhi, bringing to your kind attention a letter dated 2  nd November  2015  signed  by  21  elected  members  of  the  Congress Legislature  Party  Arunachal  Pradesh,  in  clear  undemocratic, indiscipline  and  unheard  manner  dictating  terms  and  excuses  for absenting and voluntarily  distancing from the Congress Legislature Party, Arunachal Pradesh against procedure established by the rules and regulations of the party, challenging the democratically elected Congress Legislature Party leaders authority, instead of participating in  the  meeting as  members of  the Congress  Legislature  Party  and express  whatever  opinion,  suggestion  or  grievances  which  can  be resolved or decided by the Congress Legislature Party in its meeting. It is also requested that the Congress High Command may make it clear that whether the signatories of the letter are staying back in Delhi as per the advice of the AICC in spite of the fact that, the above group  of  Legislatures  voluntarily  abstained  from  the  earlier  CLP meeting held on 16th November,  2015,  which was attended by the General  Secretary,  AICC  in  charge  of  Arunachal  Pradesh  Shri  V. Narayanaswamy, Dr. Jayakumar, Secretary AICC and Shri Padi Richo President APCC on the same grounds. The meeting of the Congress Legislature Party also bring to the notice of the Party Leadership that the activities of the above 21 MLAs who have  formed  a  separate  group  distancing  themselves  from  the Congress Party, is working against the interests of the Party and the democratically  elected  Government  of  the  Party,  which  is  taking all-round  efforts  to  develop  the  State  and  working  untiringly  to improve and help the people of Arunachal Pradesh, which got elected with  an unprecedented mandate  in  the  Assembly  election  held  on 2014.”

13. It  was  submitted,  that  the  said  21  dissident  MLAs,  were  publicly

proclaiming, that V. Narayanasamy, a former Union Minister, and the All

India  Congress  Committee  in-charge  for  North  Eastern  States,  was

supporting them in their cause.  V. Narayanasamy had to address identical

letters  to  all  the  21  dissident  MLAs,  on  6.12.2015,  to  repudiate  their

assertion  of  his  support.   The  text  of  the  aforesaid  communications  is

reproduced below:

“AICC has received copies of letters dated 15.11.2015 and 02.12.2015 addressed to the Chief Minister written by you and 20 other MLAs of

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the Congress Legislative Party, Arunachal Pradesh in which you have claimed  and alleged that I have advised you to stay back in Delhi to bring a solution to the present stalemate in the Party. 2. The above statements are false and against the directions given by me and the Party Leadership at Delhi and Itanagar.  In the CLP meeting  held  on  16.11.2015  at  Itanagar,  I  categorically  made  a statement that the Party Leadership is wholly supporting the present Chief Minister, Shri Nabam Tuki who is CLP leader having majority and if any grievance, any of the CLP member is having can be sorted out  in  the  Party  forum  instead  of  giving  public  statements  and working against the Chief Minister or the Govt. of Arunachal Pradesh. 3. You have also  willfully  did  not  attend three  consecutive  CLP meetings and boycotted the same. 4. Instead of  listening  to  my statement and direction,  you have made contrary statements and false allegations against me and the Party Leadership which is not acceptable.”

The President of the Arunachal Pradesh Congress Committee – Padi Richo

was required to deliver the said letters to the 21 dissident MLAs, and also,

to obtain their acknowledgement.  Which he did.

14. It  was  highlighted,  that  the  aforesaid  activities  of  the  dissident

members of the INC, compelled the President – Padi Richo, to again issue

identical letters to the concerned MLAs on 7.12.2015, with a copy to the

Chief Whip of the Congress Legislature Party – Rajesh Tacho.  The text of

the above letter is reproduced below:

“AICC has  taken serious  note  of  your  activities  against  the  party, continuous  attacks,  defamatory  and  unfounded  allegations  and propaganda against the Chief Minister and the Council of Ministers of Arunachal Pradesh and the Congress Party calculated to lower the prestige of the party, inspite of our repeated directions not to indulge in any such activities which amounts to breach of discipline of the party. By  such  continuous  actions  and  activities  you  have  distanced yourself and from your conduct we have come to the conclusion that you have voluntarily given up your membership of Indian National Congress and the Congress Legislature Party. I am enclosing herewith he letter received from the General Secretary, AICC vide dated 06/12/2015, addressed to you in this regard.”

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15. It was also pointed out, that a very important event, sponsored by the

respondents, took shape on 19.11.2015.  The 13 MLAs who had issued the

notice  of  resolution  for  the  removal  of  the  Speaker  –  Nabam  Rebia,

forwarded its copy to the Governor, with a covering letter dated 19.11.2015,

wherein, they requested the Governor, to prepone the 6th session of the

Assembly.  Their prayer was aimed at expediting the removal of the Speaker

– Nabam Rebia. This, according to the appellants, is apparent from the fact,

that the request for preponement was sought on the ground, that the issue

of removal should be taken up immediately after completion of the 14 days

notice, mandated under Article 179(c).  The 13 MLAs also pressed, through

their above letter, that the party composition in the House, be not altered,

till the resolution for removal of the Speaker, was finally disposed of.   

16. In narrating the facts, it was pointed out, that in the meeting of the

members of the Congress Legislature Party held on 3.12.2015, the activities

of  the  dissident  members  of  the  party  were  highlighted,  indicating  their

rebellious posturing.  The central leadership of the INC, at this juncture,

again supported the leadership of Chief Minister – Nabam Tuki.  The central

leadership further took note of the fact, that 21 members of the Congress

Legislature  Party,  had  distanced  themselves  from  the  party.   It  was

therefore, that the Chief Whip of the Congress Legislature Party – Rajesh

Tacho, filed a petition under Paragraph 2(1)(a) of the Tenth Schedule on

7.12.2015,  seeking  disqualification  of  14  MLAs  of  the  INC.  The

disqualification of the 14 MLAs had been sought on the ground, that they

had snapped  their  ties  with  the  INC,  by  their  refusal  to  respond to,  or

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associate with  the political  leadership in the State,  and for  their  having

expressly refused to attend the meetings of the party held on 29.9.2015,

8.11.2015, 18.11.2015 and 3.12.2015.  And also, for having issued a press

note, to publicly air their views.  The above disqualification petition, was

presented to the Speaker.  It would be relevant to mention, that the name of

the Deputy Speaker – Tenzing Norbu Thongdok, figured at serial no.14, in

the  disqualification  petition.   On  receipt  of  the  aforesaid  petition,  the

Speaker issued notices to the concerned 14 MLAs, on 7.12.2015 itself.  The

14 MLAs belonging to the INC, were required to submit their response(s),

and thereupon to appear before the Speaker, on 14.12.2015.

17. 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.  

The impugned orders:

18. The Governor of the State of Arunachal Pradesh, according to learned

counsel,  without  consulting  the  Chief  Minister  –  Nabam  Tuki,  and  his

Council of Ministers, or even the Speaker – Nabam Rebia, issued an order

dated 9.12.2015, whereby, he preponed the 6th session of the Assembly

scheduled  to  be  held  on  14.1.2016,  to  16.12.2015.   The  instant  order

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passed by the Governor, has been assailed by the appellants.  A relevant

extract of the order, is reproduced below:

“WHEREAS  I,  Jyoti  Prasad  Rajkhowa,  the  Governor  of  Arunachal Pradesh, had issued an Order on 3 November, 2015 under clause (1) of  article  174  of  the  Constitution  of  India  summoning  the  Sixth Legislative  Assembly  of  Arunachal  Pradesh  to  meet  for  its  sixth session at 10.00 AM on 14 January, 2016 in the Legislative Assembly Chamber at Naharlagun: WHEREAS subsequent to the issue of the aforesaid order by me, a notice of resolution for removal of Shri Nabam Rebia, from the office of  the Speaker of  the Arunachal  Pradesh Legislative  Assembly has been received on 19 November, 2015 with a copy endorsed to me by the notice givers namely Shri Tamiyo Taga, the Leader of Opposition in the said Assembly along with 12 other Members of the Legislative Assembly: WHEREAS the  notice  of  resolution  for  removal  of  the  Speaker  as aforesaid has complied with the notice period of 14 days on the 4 December, 2015 (excluding the day of notice and 4 December, 2015 – 14 days clear  notice)  as required under the first  proviso  to article 179(c) of the Constitution of India: WHEREAS it has been judicially held in Nipamacha Singh and Others Vs. Secretary,  Manipur Legislative Assembly and Others [AIR 2002 Gauhati 7] as under: “13… the powers to consider or to reject a motion for removal of the Speaker  from  his  office  did  not  vest  in  the  Speaker  but  in  the Legislative Assembly under article 179 and 181 of the Constitution…” WHEREAS in view of the above judicial order, it is a Constitutional obligation on my part  to  ensure that the resolution for  removal  of Speaker is expeditiously placed before the Legislative Assembly: WHEREAS I have also received a request from the notice givers of the resolution  for  removal  of  the  Speaker  that  the  sitting  of  the  sixth session  of  the  Sixth  Arunachal  Pradesh  Legislative  Assembly originally  slated  for  14  January,  2016  may  be  advanced  so  as  to enable the House to urgently consider the resolution for removal of the Speaker: WHEREAS,  the  time  gap  between  the  4  December,  2015  and  the intended date of first sitting of the sixth session i.e. 14 January, 2016 i.e. the earliest date on which the resolutions for removal of Speaker can be taken up for consideration by the House, is 42 days (including 4 December, 2015 and 14 January, 2016): WHEREAS any such notice of resolution in relation to an Officer of the  Legislative  Assembly  (Speaker  or  Deputy Speaker)  needs to  be expeditiously considered by the Legislative Assembly in view of (i) past precedents in the Lok Sabha and (ii)  the seriousness and urgency accorded to such resolutions in paragraph 2 of Rule 151 of the Rules of  Procedure  and  Conduct  of  Business  in  the  Arunachal  Pradesh

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Legislative Assembly and (iii) the utmost immediacy with which the cloud cast  by the notice  of  resolution over  the continuance of  the incumbent in the office of the Speaker has to be cleared: WHEREAS I am personally satisfied that the time gap between the date of compliance of the notice with the notice period prescribed in the first proviso to article 179(c) of the Constitution of India and the date of the intended first sitting of the ensuing session, as computed in the aforesaid manner, is long and unreasonable and may cause damage to the goals and ideals of provisions in the Constitution of India and the Rules  of  Procedure of  the House concerning  speedy disposal of such resolutions: WHEREAS I am further satisfied that, for any exercise of advancing, the date of the sixth session under clause (1) of article 174 of the Constitution of India to a date earlier than the date mentioned in the Summons  dated  3rd November,  2015  for  facilitating  the  House  to expeditiously consider resolutions for removal of Speaker,  I may not be bound by the advice of the Council of Ministers, since the subject matter of the notice for removal of the Speaker is not a matter, falling under  the  executive  jurisdiction  of  the  Chief  Minister,  Arunachal Pradesh not such a subject matter finds a mention in the Rules of Executive Business of the Government of Arunachal Pradesh framed under article 166 of the Constitution of India thereby restricting the role of the Chief  Minister  in advising me in exercise of  my powers under article 174(1) of the Constitution of India only to the matters for  which  the  Chief  Minister,  under  the  Constitution  of  India,  is responsible”. AND NOW THEREFORE – In exercise of powers conferred upon me by clause (1) of article 174 of the  Constitution  of  India,  I,  Jyoti  Prasad  Rajkhowa,  Governor  of Arunachal Pradesh do herby modify the order issued by me under the said  provision  of  the  Constitution  of  India  on 3rd November,  2015 summoning  the  Sixth  Arunachal  Pradesh  Legislative  Assembly  to meet  for  its  sixth  session  on  14th January,  2016  to  the  following extent: (i) For ‘14th January, 2016’ read ‘16th December, 2015’ (ii) For ‘18th January, 2016’ read ‘18th December, 2015’ 2. Accordingly, in pursuance of the order issued by me under clause (1) of article 174 of the Constitution of India on 3rd November, 2015 as modified herein, the Arunachal Pradesh Legislative Assembly shall now meet at 10.00 AM on 16th December,  2015 at the Legislative Assembly Chamber at Naharlagun.

JYOTI PRASAD RAJKHOWA Governor”

19. It was pointed out, that the order extracted above reveals, that it was

prompted by a notice of resolution for the removal of the Speaker, coupled

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with  the  assumption,  that  a  constitutional  obligation  was  cast  on  the

Governor, to ensure that the above resolution was expeditiously taken up

for  consideration.   Because,  any  delay  in  taking  up  the  same,  on  the

scheduled date of summoning of the 6th session of the House (- 14.1.2016),

would  “…cause damage to  the  goals  and ideals  of  the provisions of  the

Constitution,  besides  the  Conduct  of  Business  Rules  …”.  And  that,  the

Governor was not obliged, in the peculiar background referred to above, to

seek  the  advice  of  the  Chief  Minister  and  his  Council  of  Ministers.

Admittedly, the Governor had issued the above order at his own, without

any aid and advice.

20. On the same day – 9.12.2015, the Governor issued a message under

Article 175(2) inter alia fixing the resolution for the removal of the Speaker,

as the first item of the House agenda, at the first sitting of its 6th session.

A relevant extract of the same is reproduced hereunder:

“1. The resolution for removal of Speaker shall be the first item on the agenda of the House at the first sitting of the Sixth Session of the Sixth Arunachal Pradesh Legislative Assembly; 2. As the resolution for removal of the Speaker shall be the first item of business, at the first sitting of the Sixth Session of the Sixth Arunachal  Pradesh Legislative  Assembly,  the Deputy Speaker shall preside over the House from the first moment of the first sitting of the House  in  accordance  with  provisions  in  article  181(1)  of  the Constitution of India; 3. The  proceedings  of  the  House  on  the  leave,  discussion  and voting on the resolution for removal of the Speaker shall be completed at the first sitting of the session itself; 4. The Deputy Speaker shall  conduct the proceedings peacefully and truthfully and shall communicate the results of the voting on the resolution on the same day.  The proceedings of the House on the resolution shall be video graphed and an authenticated copy of the video record shall also be sent to me on the same day; and 5. Until the session is prorogued, no Presiding Officer shall alter the party composition in the House.”

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The  above  message  of  the  Governor,  has  also  been  assailed  by  the

appellants.  The message predetermined the procedure which the Assembly

was  mandated  to  follow,  particularly  with  reference  to  the  notice  of

resolution for the removal of the Speaker.  The message also entailed, that

the “… party composition in the House …” would not be altered until the

6th session of the House was prorogued.  It was pointed out, that by the

above edict,  the proceedings initiated by the Chief Whip of the Congress

Legislature Party under the Tenth Schedule, against 14 MLAs of the INC,

would automatically be put on hold, till the 6th session of the House was

prorogued.

Resumption of, the first sequence of facts:

21. It was pointed out, that consequent upon the above development, a

meeting of the Chief Minister and his Council of Ministers was convened on

14.12.2015.  Based on the opinion tendered by the Advocate General of the

State of Arunachal Pradesh dated 12.12.2015, the State Cabinet resolved,

that the order of the Governor dated 9.12.2015, was violative of Article 174

read with Article 163 of the Constitution, and Rule 3 of the ‘Conduct of

Business Rules’.  It was resolved, that the message of the Governor dated

9.12.2015, infringed Article 175 of the Constitution, read with Rule 245 of

the ‘Conduct of Business Rules’.  In the aforesaid view of the matter, the

Speaker  –  Nabam Rebia  issued  a  letter  dated  14.12.2015,  bringing  the

aforesaid legal position to the notice of the Governor,  and requested the

Governor, to allow the House to function, in consonance with the provisions

of the Constitution.  The Governor was accordingly urged, to convene the

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6th  session  of  the  Arunachal  Pradesh  Legislative  Assembly,  as  was

originally scheduled (-for 14.1.2016). It was submitted, that the aforesaid

communication  addressed  by  the  Speaker  to  the  Governor,  was  neither

responded to nor acknowledged.

22. It  was  also  the  case  of  the  appellants,  that  the  disqualification

proceedings  against  the  14  legislators  of  the  INC  (initiated  through  the

notice dated 7.12.2015), were taken up for consideration by the Speaker –

Nabam  Rebia  on  14.12.2015.   None  of  the  14  MLAs  sought  to  be

disqualified,  responded to the notice issued to them.  They did not even

enter appearance before the Speaker on the returnable date – 14.12.2015.

Accordingly, the Speaker deferred the disqualification proceedings, to the

following day – 15.12.2015. On 15.12.2015,  a disqualification order was

passed against all the 14 MLAs of the INC, ex parte.  As a natural corollary,

the constituencies from which the 14 disqualified MLAs were elected, were

declared vacant (through a notification published in the Arunachal Pradesh

Gazette dated 15.12.2015).

23. 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.   Relevant  extract  of  the  above  order  dated

15.12.2015, is reproduced hereunder:

“ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY OFFICE OF DEPUTY SPEAKER

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No.APLA/D8/68/MEM/2015         15 DECEMBER, 2015

ORDER  UNDER  TENTH  SCHEDULE  TO  THE  CONSTITUTION  OF INDIA AND RULE MADE THEREUNDER

WHEREAS the Governor of Arunachal Pradesh had issued an order dated 9th December, 2015 under article 174(1) of the Constitution of India preponing the Sixth Session of  the Sixth Arunachal  Pradesh Legislative Assembly to 16th December, 2015 from 14th January, 2016; WHEREAS the Governor of  Arunachal  Pradesh preponed the Sixth Session as aforesaid in order to enable the House to expeditiously consider and dispose of  a notice  of  Resolution for removal  of  Shri Nabam Rebia from the Office of the Speaker. WHEREAS the Governor of Arunachal Pradesh had further issued a message to the Arunachal Pradesh Legislative Assembly under article 175(2) of the Constitution of India, of which, the following part has significance of clipping the abuse of power of the incumbent Speaker. “Until the session is prorogued the Presiding Officer shall not alter the party composition in the House.” WHEREAS the resolution for removal of Speaker Sh Nabam Rebia is listed as the first item of business at the first sitting of Sixth Session of the Legislative Assembly on the 16th December, 2015; WHEREAS the Speaker who is facing the resolution for removal has deliberately  refrained  from  issuing  the  necessary  Bulletin  part  II notifying  the  resolution  and  also  the  list  of  business  for  the 16.12.2015 including  the  resolution  for  transaction  by  the  House, despite  the  message  of  the  Governor  and  in  total  defiance  of  the Constitution,  rules,  norms  and  ideals  thereby  subverting  the  vary Constitution of India; WHEREAS the Deputy Speaker who was tasked by the Governor to conduct the proceedings of the House on the resolution for removal of the  Speaker  in  accordance  with  article  181  of  the  Constitution  of India read with relevant rules of procedure of the House, prepared the Bulletin Part II and list of business for 16th December, 2015 thereby conforming  to  the  Constitution  and  the  mandate  issued  by  the Governor of Arunachal Pradesh: WHEREAS the Speaker, in order to escape the consequence of the resolution of his removal slated for transaction on the 16th December, 2015, suddenly a day before the first sitting of the Sixth Session i.e. on  the  15th December,  2015  disqualified  following  14  MLAs  by  2 Notification of even number with No.LA/LEG-37/2015 dated the 15th December,  2015  under  the  Tenth  Schedule  to  the  Constitution  of India: (1) Shri Pema Khandu (2) Shri Kumar Waii (3) Srhi Kameng Dolo (4) Shri Markio Tado (5) Shri Jarkar Gamlin (6) Shri P.D. Sona

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(7) Shri Mutchu Mithi (8) Shri Kamlung Mossang (9) Shri Phosum Khimhun (10) Shri Wanglin Lowangdong (11) Shri T. Wangham (12) Shri Lombo Tayeng (13) Shri Kalikho Pul (14) Shri T.N. Thongdok

WHEREAS THE Speaker has disqualified the above 14 MLAs without following basic procedure of law and justice in regard to: (i) Receipt of petition for Disqualification. (ii) Forwarding the petition for comments of the respondents. (iii) Hearing the respondents. WHEREAS Rule 7(7) of the Members of Arunachal Pradesh Legislative Assembly (Disqualification on Ground of Defection) provides as under, according  to  which,  no  MLA can  be  disqualified  under  the  Tenth Schedule without affording an opportunity of personally being heard:

“…..neither the Speaker nor the committee shall  come to any finding that a member has become subject to disqualification under  the  Tenth  Schedule  without  affording  a  reasonable opportunity to such members to represent his case and to be heard in person.”

WHEREAS,  when  a  notice  of  resolution  is  staring  at  the  face  of Speaker, he is completely incapacitated from making any order on the membership of other MLAs when his own fate is hanging in balance: WHEREAS the Speaker, as Constitutional functionary, is not vested with omnipotent powers to cause injury to the powers of Honourable Governor who had already issued a message as aforesaid to maintain the integrity of party-wise composition of the House: WHEREAS the Speaker, in committing this mala fide and perverse action, has not even spared the Deputy Speaker whom the Governor had appointed to preside over the proceedings of the House when it takes up consideration of the resolution for removal of the Speaker: WHEREAS a Speaker who is facing a removal resolution before the House has no competence whatsoever to pass instantaneous orders under the Tenth Schedule to manipulate a majority in favour of him and also Speaker who has been directed to face the House over the resolution for his own removal has no power whatsoever to escape his defeat by throwing out chunks of MLAs abusing his powers under the Tenth Schedule: WHEREAS  the  orders  of  the  Speaker  disqualifying  14  MLAs  as aforesaid squarely challenges the position of the Governor which the Constitution of India had designed him to occupy in the scheme of Constitution: NOW THEREFORE, I,  Shri T.N. Thongdok, Deputy Speaker appointed by the Governor to preside  over  the  first  sitting  of  the  sixth  session  of  the  sixth

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Arunachal  Legislative  Assembly,  hereby  quash  the  orders  of  the Speaker and notification issued by the Secretary  of the Legislative Assembly  as  aforesaid  disqualifying  above  named  named  fourteen members  of  the  Legislative  Assembly  and  such  orders  and notifications may be deemed as non est for want of competence on the part of the Speaker who passed the order not only for not following constitutional  and  legal  procedures  but  also  for  having  lost  his competence to do so since a notice of resolution dated 19.11.2015 for his removal is pending against him and which is to come before the house on 16.12.2015. 2.  The  effect  of  this  order  is  that  all  the  above  named  14  MLAs continue to be members of the sixth Arunachal Pradesh Legislative Assembly as though the order of the delinquent Speaker is ab initio void. 3. All the aforesaid 14 MLAs shall attend all the sessions of the sixth Arunachal Pradesh Legislative Assembly without let or hindrance. 4. Any authority, civil or police, obstructing their attendance of the ensuing session shall be committing grave breach of privilege of the legislative assembly as also shall come directly under the disciplinary jurisdiction of all law enforcing authorities including the Governor. Naharlagun 15th December 2015 T.N. Thongdok

Deputy Speaker”

24. 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 submitted, that

the  House  assembled  at  Techi  Takar  Community  Hall,  G  Sector,

Naharlagun.  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.  Having so

declared, the Deputy Speaker further ordered, that the 6th session of the

Assembly would be convened as rescheduled by the Governor, with effect

from 16.12.2015.  It was also ordered, that the 6th session of the Assembly

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would continue upto 18.12.2015.  The order passed by the Governor on

9.12.2015 was thus reiterated, and also given effect to.  When the House

assembled for the preponed 6th session on 16.12.2015, the notice for a vote

of  confidence against the Speaker was taken up for  consideration.   The

resolution for removal of the Speaker – Nabam Rebia, was adopted by the

Assembly on 16.12.2015 itself.  The list of business issued by the Deputy

Speaker – Tenzing Norbu Thongdok provided, that the following motions

would be taken up on 17.12.2015:

(i) vote  of  confidence  of the  Council  of  Ministers  headed  by  Shri Nabam Tuki – the then Chief Minister, and

(ii) expression of confidence in Kalikho Pul, to head the new Council of Ministers.

The second sequence of facts:

25. It is also relevant to mention, that the Speaker – Nabam Rebia, filed

Writ  Petition  (C)  No.7745  of  2015  before  the  Gauhati  High  Court,

challenging inter alia the Governor’s order dated 9.12.2015, the Governor’s

message dated 9.12.2015, the alleged holding of the preponed 6th session of

the  Assembly,  outside  the  House  on  16.12.2015,  the  Deputy  Speaker  –

Tenzing  Norbu  Thongdok’s  order  dated  15.12.2015,  quashing  the

disqualification  order  of  the  14  MLAs,  belonging  to  the  INC,  and  the

resolution  dated  16.12.2015  adopting  the  resolution  for  removal  of  the

Speaker – Nabam Rebia, and its consequential notification.   

26. A Single Bench of the Gauhati High Court, by an interim order dated

17.12.2015 stayed all the aforementioned impugned decisions, till the next

date of hearing – 1.2.2016.  A relevant extract of the interim order passed

by the High Court is reproduced below: 27

Page 28

“23.  The disturbing developments in the State of Arunachal Pradesh noticed from the various steps taken since November 2015 indicates the  tussle  for  power  by  opposing  group  and  it  is  clear  that  the Speaker and the Deputy Speaker of  the Assembly are heading the opposite  camps.   Understandably  the  action  of  the  MLAs  are motivated by political exigencies and a manifestation of this can be seen from the FIR dated 20.12.2015. In such situation, the Governor as  the  constitutional  head,  is  expected  to  discharge  his  role  with dispassion  and  within  the  constitutional  framework.   But  the impugned steps taken by the State’s Governor which facilitated the political battle to move in certain direction in the tussle for power, reflects  the non neutral role of the constitutional  head and this is undermining the democratic process.

xxx xxx xxx 25.  Taking  all  the  above  factors  into  account  meanwhile,  the impugned decision(s)  are ordered to be kept in abeyance until  the case is considered next.  List on 1.2.2016.”

A perusal of the interim order passed by the High Court, it was contended,

reveals that the High Court had entertained a  prima facie  view, that the

Governor, was facilitating the political conflict between the parties towards

a definite direction, in a prejudicial manner.  And also, that the Governor

had  not  acted  in  a  dispassionate  manner.   The  appellants,  during  the

course  of  hearing,  left  no  stone  unturned,  to  endorse  the  above  noted

impression of  the Single  Bench.  The decisions kept in abeyance,  by the

interim order extracted above, were:

(i) the order passed by the Governor dated 9.12.2015

(ii) the message of the Governor dated 9.12.2015

(iii) the  order  passed by the  Deputy  Speaker dated 15.12.2015 setting aside the disqualification of the 14 MLAs; and  

(iv) the resolution dated 16.12.2015, removing the Speaker.

Thereafter, based on an order obtained by the Joint Registrar (Judicial) of

the Gauhati High Court from the acting Chief Justice of the High Court, on

the administrative side, the above Writ Petition (C) No.7745 of 2015, was

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placed before a different Single Bench of the High Court.  During the course

of hearing of the above writ petition on 19.12.2015, the Governor – Jyoti

Prasad Rajkhowa, and the State Government, were impleaded as parties.

Two further interlocutory applications bearing nos. 2822 and 2823 of 2015,

were filed by 13 and 7 applicants respectively, seeking impleadment in Writ

Petition  (C)  No.7745  of  2015,  and  were  allowed.   Through  the  above

applications,  the  applicants  besides  seeking  impleadment,  assailed  the

maintainability  of  Writ  Petition  (C)  No.7745  of  2015.  They  also  sought

modification/vacation of the interim order (staying the impugned decisions),

dated 17.12.2015.

27. It was submitted, that when the Assembly met on 17.12.2015, and

the Government headed by the Chief Minister – Nabam Tuki was declared to

have  lost  confidence  of  the  House,  Kalikho  Pul,  another  INC  MLA,  was

chosen as the new leader of the House.   

28. The learned Single Bench, before whom the matter came to be posted

by  the  acting  Chief  Justice  of  the  High  Court  (after  the  interim  order

extracted above, had been passed), issued notice for modification/vacation

of  the  interim  order  (passed  by  the  previous  Single  Bench)  dated

17.12.2015.  It was submitted, that without any notice to the appellant, and

without affording an opportunity of hearing to the counsel representing the

appellant, the successor Single Bench restrained reconvening of the House

till 4.1.2016.

29. The  two  MLAs belonging  to  the  INC (-  Bamang  Felix  and Nyamar

Karbak) also approached the High Court by filing Writ Petition (C) No.7998

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of 2015.  The petitioners in the aforesaid writ petition, inter alia assailed the

same decisions,  as were  impugned by Nabam Rebia in Writ  Petition  (C)

No.7745 of 2015 (more or less, on the same grounds).  The instant matter

came up for hearing, before yet another Single Bench of the High Court.  On

its first date of hearing, Writ Petition (C) No.7998 of 2015 was directed to be

posted for  hearing on 4.1.2016,  along with  the first  writ  petition  – Writ

Petition (C) No.7745 of 2015.  Resultantly, both the writ petitions came to

be posted before the same Single  Bench (nominated by the acting Chief

Justice, on 18.12.2015).   

30. Dissatisfied  with  the  listing  of  the  matters,  the  appellant  herein  –

Nabam Rebia, filed an Interlocutory Application in Writ Petition (C) No.7745

of  2015,  on the judicial  side  on 23.12.2015,  seeking  the  recusal  of  the

Single Bench, nominated to hear the case by the acting Chief Justice. Writ

Petition  (C)  No.10  of  2016,  was  independently  filed  in  the  High  Court,

impugning  the  order  of  the  acting  Chief  Justice  dated  18.12.2015

(communicated by the Joint Registrar (Judicial), after obtaining instructions

from the  acting  Chief  Justice),  directing  the  posting  of  Writ  Petition  (C)

No.7745 of 2015, before a different Single Bench of the High Court.     

31. As already noticed above, a prayer for recusal was also made to the

learned Single  Bench,  before which the matter  had been posted,  by the

acting Chief Justice.  The learned Single Bench, was asked to recuse from

the proceedings in Writ  Petition  (C)  No.7745 of  2015.   The acting  Chief

Justice of the High Court, entertained an Interlocutory Application with a

similar prayer, in his chambers on the administrative side, and rejected the

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same  on  4.1.2016.  Writ  Petition  (C)  No.10  of  2016  was  dismissed  on

7.1.2016 by a Single  Bench (other than the one,  which had passed the

interim order dated 17.12.2016, as also, other than the one to which the

acting Chief Justice had assigned Writ Petition (C) No. 7745 of 2015 for

hearing  –  after  the  passing  of  the  interim  order  dated  17.12.2016).

Dissatisfied with the above determination, the appellant filed Special Leave

Petition (C) No.189 of 2016, before this Court.   It would be pertinent to

mention,  that  the  above  special  leave  petition  was  withdrawn  by  the

petitioner on 13.1.2016.

The legal challenge, on behalf of the appellants:

32. The High Court disposed of Writ Petition (C) Nos.7745 and 7998 of

2015 by a common order dated 13.1.2016.  The instant order is subject

matter of challenge, through Special  Leave Petition (C)  Nos.1259-1260 of

2016.

33. Despite the challenges to the various orders passed by the High Court

through different petitions, 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.  

34. 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

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the State Legislature includes the Governor.   It  was submitted,  that the

Governor cannot be considered even as an officer of the House.  Despite the

above two express assertions,  it was submitted, that it cannot be disputed

that the Governor of a State is a part of the State Legislature – just like the

President, is a part of the Parliament.  It was asserted, that the Governor

functions  and  operates  as  a  bridge  between  the  executive  and  the

legislature.   Through an address by the Governor under Article 175, the

executive informs the Assembly, about the policies of the Government.  The

power vested with the Governor, to give his assent to a Bill passed by the

Assembly, or to require the matter to be reconsidered by returning the Bill

to  the  legislature,  it  was  pointed  out,  were  powers  which  a  Governor

exercised  beyond  the  precincts  of  the  Assembly.   This  function/power

resting with the Governor, according to learned counsel, was clearly beyond

the scope of legislative business, conducted within the Assembly.  It was

pointed out, that when a Governor summons the House, he does not do so

at his own will.  He summons the House, on the aid and advice of the Chief

Minister  and  his  Council  of  Ministers,  after  due  consultation  with  the

Speaker.  The only responsibility entrusted to the Governor, according to

learned  counsel,  is  provided  for  in  Article  174,  inasmuch  as,  it  is  the

obligation  of  the  Governor  to  ensure,  that  the  interval  between  the  last

sitting  of  the  previous  session,  and  the  first  sitting  of  the  succeeding

session, is not more than six months.   

35. For  substantiating  the  propositions  canvassed  in  the  foregoing

paragraph,  reliance  was  first  placed  on  Article  158,  which  expressly

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provides, that the “…Governor shall not be a member of either House of

Parliament or of a House of the Legislature of any State specified in the First

Schedule…”.  It  was pointed out,  that as a matter of abundant caution,

Article  158  also  provides,  that  in  case  an  incumbent  member  of  the

Assembly (or that of the Parliament) is appointed as Governor of a State “…

he shall be deemed to have vacated his seat in that House on the date on

which he enters his office as Governor”.  Additionally, reliance was placed

on Article 163 to demonstrate, that the Governor is bound by the aid and

advice  of  the  Chief  Minister  and  his  Council  of  Ministers.   It  was

acknowledged, that the Governor is also authorized to act independently –

on his own, but only in respect of such functions, wherein he is expressly

authorized to do so, by or under the Constitution.  It was acknowledged,

that in such matters which the Governor considers as falling within his

independent judgment, “… the decision of the Governor in his discretion

shall be final…”.  And that, the exercise of such discretion, cannot be called

in question. It was however pointed out, that such exercise of independent

judgment, can only be questioned by way of judicial review.   

36. In order to demonstrate the effectiveness of the Governor as a bridge

between the executive and the legislature, reliance was placed by learned

counsel on Article 167, which provides that it would be the duty of the Chief

Minister, to communicate all decisions of the Council of Ministers relating

to  administration  of  affairs  of  the  State  to  the  Governor,  as  well  as,

proposals with reference to matters on which legislation is contemplated.  It

was therefore submitted, that the intent expressed in Article 168 should not

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be  determined  from  a  peripheral  reading  thereof,  but  from  the  scheme

envisioned by the surrounding provisions.  It was urged, that even though

Article  168  provides,  that  every  State  Legislature  “shall”  consist  of  the

Governor, the fact of the matter is, that the Governor has no role in any

legislative activity of the House.

37. It was acknowledged, that the Governor was obliged to address the

Assembly, in consonance with Article 175(1).  It was however urged, that

the Governor’s address to the House, was obligated to be in consonance

with, the aid and advice of the Chief Minister and his Council of Ministers.

It  was  pointed  out,  that  the  same  position  prevailed,  in  the  matter  of

sending messages to the House under Article 175(2),  which according to

learned counsel, was subject to similar aid and advice.

38. Inviting the Court’s attention to Article 178 it was submitted, that the

instant Article  is a part  of  Chapter  III   -  under Part  VI (which includes

Articles 178 to 189), of the Constitution.  It was pointed out, that Chapter

III bears the heading – “Officers of the State Legislature”.  It was pointed

out, that the Speaker and the Deputy Speaker are the only two officers of

the State Legislative Assembly.  And likewise, the Chairman and the Deputy

Chairman, are the only officers of the State Legislative Council.  Besides the

above officers, the staff of a State Legislative Assembly, comprises of the

personnel  appointed,  for  carrying  on  ministerial  responsibilities  of  the

secretariat of the Legislature.  It was submitted, that no other functionary

could  be  considered as an officer  of  the  State  Legislature.   The pointed

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contention  of  learned  counsel  was,  that  the  Governor  could  not  be

considered, as an officer of a State Legislative Assembly.   

39. In the present sequence of submissions, learned counsel, last of all,

referred  to  Article  208,  and  urged,  that  the  same  allows  every  State

Legislative  Assembly  to  frame  rules  for  regulating  the  procedure  for

conducting business of the House.  Having drawn the Court’s attention to

sub-article (3) of Article 208, it was submitted, that the power vested with

the Governor  to  make rules  thereunder,  was limited  to  communications

between  the  two  Houses  (the  State  Legislative  Assembly  and  the  State

Legislative Council).  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.  Having invited our attention to

Article 163, it was asserted, that the power vested with the Governor under

Article 208 by necessary implication, had to be exercised on the aid and

advice of the Chief Minister and his Council of Ministers.

40. Having premised his submissions on the aforementioned provisions,

reference  was  made  by  learned  counsel  to  Paragraph  6  of  the  Tenth

Schedule.  Paragraph 6(1), according to learned counsel, leaves no room for

any doubt, that on the subject of disqualification of an MLA, the functional

authority is vested only with the Speaker.  It was further submitted, that

reference to Article 212 (cited in Paragraph 6(2), of the Tenth Schedule), was

for the sole purpose of granting judicial immunity, to the actions taken on a

disqualification  motion  under  Paragraph  6.   Most  importantly,  it  was

pointed out, that the Governor has no role whatsoever, on the question of

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removal of MLAs.  And as such, according to learned counsel, it was not

open  to  the  Governor  to  be  concerned  with,  what  might  or  might  not

emerge,  from  proceedings  conducted  by  the  Speaker  under  the  Tenth

Schedule.

41. 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…”. Despite the aforesaid protection afforded to the

Governor, it was submitted, that in the present controversy, the Governor –

Jyoti Prasad Rajkhowa had moved an application for being permitted to be

arrayed as a party respondent.  This action of the Governor, according to

learned counsel,  was sufficient to infer, that the actions of the Governor

were partisan.  It was submitted, that the facts of the case reveal, that the

actions  of  the  Governor,  were  supportive  of  the  BJP  for  purely  political

considerations, and that, they were pointedly prejudicial to the interest of

the INC.  It was asserted, that an analysis of actions of the Governor would

reveal, that the Governor was making concerted efforts towards dislodging

the  INC  Government,  and/or  weakening  it  by  extending  support  to  the

faction of the INC MLAs seeking the removal of the Chief Minister – Nabam

Tuki.

42. In order to support his contentions, learned counsel placed reliance

on debates of the Constituent Assembly.  With reference to Article 163, it

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was submitted, that the Governor was mandated to discharge his functions

in consonance with the aid and advice of the “Council of Ministers with the

Chief Minister at the head”.  The only exception to the above position was in

situations,  where  an express  provision  of  the  Constitution,  required  the

Governor  to  exercise  his  functions  in  his  own  discretion/judgment.   It

would be relevant to mention, that draft Article 143 eventually came to be

renumbered as Article  163 in the Constitution.   The debate highlighted,

with reference to the concerned provision, is extracted hereunder:

“Shri     H.V.     Kamath: (C.P.  &  Berar:  General):  Mr.  President,  Sir,  I move: "That in clause (1) of article 143, the words 'except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion' be deleted." If this amendment were accepted by the House, this clause of article 143 would read thus:- "There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions." Sir, it appears from a reading of this clause that the Government of India  Act  of  1935  has  been  copied  more  or  less  blindly  without mature consideration. There is no strong or valid reason for giving the Governor  more  authority  either  in  his  discretion  or otherwise vis-a-vis his ministers, than has been given to the President in relation to his ministers. If we turn to article 61(1), we find it reads as follows:- "There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions." When  you,  Sir,  raised  a  very  important  issue,  the  other  day, Dr.     Ambedkar    clarified  this  clause  by  saying  that  the  President  is bound to accept the advice of his ministers in the exercise of all of his functions. But here article 143 vests certain discretionary powers in the Governor, and to me it  seems that even as it  was, it  was bad enough, but now after having amended article 131 regarding election of  the  Governor  and  accepted  nominated  Governors,  it  would  be wrong  in  principle  and  contrary  to  the  tenets  and  principles  of constitutional Government, which you are going to build up in this country.  It  would  be  wrong I  say  ,     to  invest  a  Governor  with  these additional  powers,  namely,  discretionary  powers.  I  feel  that  no departure  from the principles  of  constitutional  Government should be     favoured   except for reasons of emergency and these discretionary

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powers must be done away with. I hope this amendment of mine will commend itself to the House. I move, Sir.

xxx xxx xxx Shri     T.T.     Krishnamachari: Mr.  President,  I  am afraid  I  will  have  to oppose the amendment moved by my honourable Friend Mr. Kamath, only for the reason that he has not understood the scope of the article clearly and his amendment arises out of a misapprehension. Sir, it is no doubt true, that certain words from this article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the advice tendered by his Ministers. Actually, I think this is more by way of  a  safeguard,  because  there  are  specific  provisions  in  this  Draft Constitution  which  occur  subsequently  where  the  Governor  is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the articles that occur subsequently, or to leave out any mention of this power here and only state it in the appropriate article. The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the advice  of  his  Ministers  except  in  so far  as the  exercise  of  his discretions covered by those articles in the Constitution in which he is specifically empowered to act in his discretion. So long as there are articles  occurring  subsequently  in  the  Constitution  where  he  is asked     to     act  in  his  discretion,  which  completely  cover  all  cases  of departure  from  the  normal  practice  to  which  I  see my     honourable     Friend Mr.    Kamath     has no objection,  I  may refer to article 188, I see no harm in the provision in this article being as it is. If  it  happens  that  this  House  decides  that  in  all  the  subsequent articles,  the  discretionary  power  should  not  be  there,  as  it  may conceivably do, this particular provision will be of no use and will fall into  desuetude.  The  point  that  my honourable Friend  is  trying  to make, while he concedes that the discretionary power of the Governor can be given under article 188, seems to be pointless. If it is to be given in article 188, there is no harm in the mention of it remaining here.  No  harm  can  arise  by  specific  mention  of  this  exception  of article 143. Therefore, the serious objection that Mr. Kamath finds for mention of this exception is pointless. I therefore think that the article had better be passed without any amendment. If it is necessary for the House either to limit the discretionary power of the Governor or completely do away with it, it could be done in the articles that occur subsequently  where  specific  mention  is  made  without  which  this power that is mentioned here cannot at all be exercised. That is the point that I would like to draw the  attention of the House to and I think the article had better be passed as it is. Dr.  P.S.     Deshmukh: (C.P.  &  Berar:  General):  Mr.  President,  Mr.  T. T. Krishnamachari has  clarified  the  position  with  regard  to  this

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exception which has been added to clause (1) of article 143.  If  the Governor is, in fact, going to have a discretionary power, then it is necessary  that  this  clause  which  Mr.     Kamath     seeks  to  omit  must remain. Sir,  Besides  this,  I  do  not  know  if  the  Drafting  Committee  has deliberately omitted or they are going to provide it at a later stage, and I would like to ask Dr. Ambedkar whether it is not necessary to provide for the Governor to preside at the meetings of the Council of Ministers. I do not find any provision here to this effect. Since this article 143 is a mere reproduction of section 50 of the Government of India Act, 1935, where this provision does exist that the Governor in his discretion may preside at the meetings of the Council of Ministers, I think this power is very necessary. Otherwise, the Ministers may exclude the Governor from any meetings whatever  and this  power unless  specifically  provided  for,  would  not  be  available  to  the Governor. I would like to draw the attention of the members of the Drafting Committee to this and to see if it is possible either to accept an amendment to article  143 by leaving it  over or by making this provision in some other part. I think this power of the Governor to preside over the meetings of the Cabinet is an essential one and ought to be provided for.

xxx xxx xxx Pandit     Hirday  Nath     Kunzru: (United  Provinces:  General):  Mr. President I should     like     to ask Dr.   Ambedkar     whether it is necessary to retain after the words "that the Governor will be aided and advised by his  Ministers",  the  words  "except  in  regard  to  certain  matters  in respect of  which he is to  exercise his discretion".  Supposing these words, which are reminiscent of the old Government of India Act and the old order, are omitted, what harm will be done? The functions of the Ministers legally will be only to aid and advice the Governor. The article  in  which  these  words  occur  does  not  lay  down  that  the Governor  shall  be  guided  by  the  advice  of  his  Ministers  but  it  is expected  that  in  accordance  with  the  Constitutional  practice prevailing in all countries where responsible Government exists the Governor will in all matters accept the advice of his Ministers. This does not however mean that where the Statute clearly lays down that action in regard to specified matters may be taken by him on his own authority this article 143 will stand in his way.

xxx xxx xxx I should like to say one word more before I close. If  article 143 is passed in its present form, it may give rise to misapprehensions of the kind  that  my     honourable    Friend  Dr.     Deshmukh     seemed  to be     labouring     under  when  he  asked  that  a  provision  should  be inserted entitling the Governor to preside over the meetings of the Council of Ministers. The Draft Constitution does not provide for this and I think wisely does not provide for this. It would be contrary to the  traditions  of  responsible  government  as  they  have  been established  in  Great  Britain  and  the  British  Dominions,  that  the

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Governor  or  the  Governor-General  should,  as  a  matter  of  right, preside  over  the  meetings  of  his  cabinet.  All  that  the  Draft Constitution does is to lay on the Chief Minister the duty of informing the Governor of the decisions come to by the Council of Ministers in regard to administrative matters and the legislative     programme     of the government.  In  spite  of  this,  we  see  that  the  article  143,  as  it  is worded, has created a misunderstanding in the mind of a member like  Dr.     Deshmukh     who  takes  pains  to  follow  every  article  of  the Constitution  with  care.  This  is  an  additional  reason  why  the discretionary  power  of  the  Governor  should  not  be  referred  to  in article 143. The speech of my Friend Mr.    Krishnamachari     does not hold  out  the  hope  that  the  suggestion  that  I  have  made  has  any chance of being accepted. Nevertheless, I feel it my duty to say that the course proposed by Mr.     Kamath     is better than what the Drafting Sub-Committee seem to approve.

xxx xxx xxx Shri     Alladi     Krishnaswami     Ayyar: (Madras: General): Sir, there is really no difference between those who oppose and those who approve the amendment. In the first place, the general principle is laid down in article 143 namely, the principle of ministerial responsibility, that the Governor in the various spheres of executive activity should act on the advice of his ministers. Then the article goes on to provide "except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. So long as there are article in the Constitution which enable the Governor to act in his discretion and in certain circumstances, it may be, to over-ride the cabinet  or  to  refer  to  the  President,  this  article  as  it  is  framed is perfectly in order. If later on the House comes to the conclusion that those articles which enable the Governor to act in his discretion in specific cases should be deleted, it will  be open to revise this article. But so long as there are later articles which permit the Governor to act in his discretion and not on ministerial responsibility, the article as drafted is perfectly in order. Shri     H.V.     Pataskar: (Bombay: General):  Sir,  article  143  is  perfectly clear.  With  regard  to  the  amendment  of  my honourable Friend Mr. Kamath various points were raised, whether the Governor is to be merely a figure-head, whether he is to be a constitutional head only or  whether  he  is  to  have  discretionary  powers.  To  my  mind  the question should be looked at from and entirely different point of view. Article 143 merely relates to the functions of the ministers. It does not primarily relate to the powers and functions of a Governor. It only says: "There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions." Granting that we stop there, is it likely that any complications will arise or that it will interfere with the discretionary powers which are proposed  to  be  given  to  the  Governor?  In  my  view  article  188  is probably necessary and I do not mean to suggest for a moment that

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the Governor's powers to act in an emergency which powers are given under article 188, should not be there. My point is this, whether if this  Provision,     viz.,     "except  in  so  far  as  he  is  by  or  under  this Constitution required to exercise his functions or any of them in his discretion", is not there, is it going to affect the powers that are going to be given to him to act in his discretion under article 188? I have carefully  listened  to  my     honourable     Friend  and  respected constitutional lawyer.  Mr. Alladi Krishnaswami Ayyer, but I was not able to  follow why a provision like this  is  necessary.  He said that instead later on, while considering article 188, we might have to say "Notwithstanding anything contained in article 143." In the first place to my mind it is not necessary. In the next place, even granting that it becomes necessary   at a later stage to make provision in article 188 by saying "notwithstanding anything contained in article 143", it looks so obnoxious to  keep these words here  and they  are likely  to  enable certain  people  to  create  a  sort  of  unnecessary  and  unwarranted prejudice against certain people. Article 143 primarily relates to the functions of the ministers. Why is it necessary at this stage to remind the ministers of  the powers of  the Governor and his functions, by telling them that they shall not give any aid or advice in so far as he, the Governor is required to act in his discretion? This is an article which is  intended to define the powers and functions of  the Chief Minister. At that point to suggest this, looks like lacking in courtesy and politeness. Therefore I think the question should be considered in that  way.  The  question  is  not  whether  we  are  going  to  give discretionary  powers  to  the  Governors  or  not.  The question is  not whether  he  is  to  be  merely  a  figure-head  or  otherwise. These  are questions to be debated at their proper time and place. When we are considering  article  143  which  defines  the  functions  of  the  Chief Minister it  looks so awkward and unnecessary to say in the same article "except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion." Though I entirely agree that article 188 is absolutely necessary I suggest that in this article 143 these words are entirely unnecessary and should not be there. Looked at from a practical point of view this provision is misplaced  and  it  is  not  courteous,  nor  polite,  nor  justified  nor relevant. I therefore suggest that nothing would be lost by deleting these  words.  I  do  not  know  whether  my  suggestion  would  be acceptable but I think it is worth being considered from a higher point of view.

xxx xxx xxx The     Honourable     Dr.  B.R.     Ambedkar: Mr.  President,  Sir,  I  did  not think that it would have been necessary for me to speak and take part in this debate after what my Friend, Mr. T. T.  Krishnamachari, had said  on  this  amendment  of  Mr. Kamath,  but  as  my Friend, Pandit Kunzru,  pointedly  asked  me  the  question  and demanded a reply, I thought that out of courtesy I should say a few words. Sir, the main and the crucial question is  ,     should the Governor

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have discretionary powers? It is that question which is the main and the  principal  question.  After  we  come  to  some  decision  on  this question, the other question whether the words used in the last part of clause (1) of article 143 should be retained in that article or should be transferred somewhere else could be usefully considered. The first thing, therefore, that I propose to do so is to devote myself of this question which, as I said, is the crucial question. It has been said in the course of the debate that the retention of discretionary power in the Governor is contrary to responsible government in the provinces. It has also been said that the retention of discretionary power in the Governor smells of the Government of India Act, 1935, which in the main was undemocratic. Now, speaking for myself, I have no doubt in my mind that the retention in or the vesting the Governor with certain discretionary  powers  is  in  no  sense  contrary  to  or  in  no  sense  a negation of  responsible  government.  I  do  not  wish  to  rake up the point  because  on  this  point  I  can  very  well  satisfy  the  House  by reference to  the  provisions in  the Constitution  of  Canada and the Constitution of Australia. I do not think anybody in this House would dispute  that  the  Canadian  system  of  government  is  not  a  fully responsible  system of  government,  nor will  anybody in this  House challenge that the Australian Government is not a responsible form of government. Having said that, I would like to read section 55 of the Canadian Constitution.

"Section 55.--Where a Bill passed by the Houses of Parliament is presented to the Governor-General for the Queen's assent, he shall, according  to  his  discretion,  and  subject  to  provisions  of  this  Act, either assent thereto in the Queen's name, or withhold the Queen's assent  or  reserve  the  Bill  for  the  signification  of  the  Queen's pleasure."

xxx xxx xxx The Honourable Dr.  B.  R. Ambedkar: I  think  he  has  misread  the article.  I  am sorry  I  do  not  have  the  Draft  Constitution  with  me. "Except in so far as he is by or under this Constitution," those are the words. If the words were "except whenever he thinks that he should exercise this  power of  discretion against the wishes or against the advice  of  the  ministers",  then  I  think  the  criticism  made  by  my honourable     Friend     Pandit     Kunzru     would have been valid. The clause is a very limited clause; it says: "except in so far as he is by or under this  Constitution".  Therefore,  article  143  will  have  to  be  read  in conjunction  with  such  other  articles  which  specifically  reserve  the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my        honourable        Friend,        Pandit     Kunzru. Therefore, as I said, having stated that there is nothing incompatible with  the  retention  of  the  discretionary  power  in  the  Governor  in specified cases with the system of responsible Government,  the only question that arises is, how should we provide for the mention of this

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discretionary  power? It  seems to  me that  there  are three ways by which this could be done.   One way is to omit the words from article 143 as my     honourable     Friend,        Pandit     Kunzru  , and others desire and to add to such articles as 175, or 188 or such other provisions which the House may hereafter  introduce,  vesting the Governor  with  the discretionary power, saying notwithstanding article 143, the Governor shall have this or that power. The other way would be to say in article 143,  "that  except  as  provided  in  articles  so  and  so  specifically mentioned-articles 175, 188, 200 or whatever they are". But the point I am trying to submit to the House is that the House cannot escape from  mentioning  in  some  manner  that  the  Governor  shall  have discretion. Now  the  matter  which  seems  to  find  some  kind  of     favour     with my     honourable   Friend,     Pandit     Kunzru     and those who have spoken in the same way is  that the words should be omitted  from here and should  be  transferred  somewhere  else  or  that  the  specific  articles should be mentioned in article 143. It seems to me that this is a mere method  of  drafting.  There  is  no  question  of  substance  and  no question of  principle.  I  personally  myself  would be quite  willing to amend the last portion of clause (1) of article 143 if I knew at this stage     what  are  the  provisions  that  this  Constituent  Assembly proposes to make with  regard to  the vesting of  the Governor with discretionary power. My difficulty  is that we have not as yet come either to article 175 or 188 nor have we exhausted all the possibilities of  other  provisions  being  made,  vesting  the  Governor  with discretionary  power.  If  I  knew  that,  I  would  very  readily  agree  to amend article 143 and to mention the specific article, but that cannot be done now. Therefore, my submission is that no wrong could be done if the words as they stand in article 143 remain as they are. They are certainly not inconsistent. Shri     H.V.     Kamath: Is  there  no  material  difference  between  article 61(1) relating to the President     vis-a-  vis     his ministers and this article? The     Honourable     Dr. B.R.     Ambedkar: Of course there is because we do not want to vest the President with any discretionary power. Because the provincial Governments are required to work in subordination to the Central Government, and therefore, in order to see that they do act  in  subordination  to  the  Central  Government  the  Governor  will reserve certain things in order to give the President the opportunity to see  that  the  rules  under  which  the  provincial  Governments  are supposed to act according to the Constitution or in subordination to the Central Government are observed. Shri     H.V.     Kamath: Will  it  not be better to specify certain articles in the  Constitution  with  regard  to  discretionary  powers,  instead  of conferring general discretionary powers like this? The     Honourable     Dr.  B.R.     Ambedkar: I  said  so,  that  I  would  very readily  do  it.  I  am  prepared  to  introduce  specific  articles,  if  I knew what are the articles which the House is going to incorporate in

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the Constitution regarding vesting of the discretionary powers in the Governor. Shri     H.V.     Kamath: Why not hold it over? The     Honourable     Dr.  B.R.     Ambedkar: We  can  revise.  This  House  is perfectly  competent  to  revise  article  143. If after  going through the whole of it, the House feels that the better way would be to mention the articles specifically, it can do so. It is purely a logomachy.”

It is not necessary for us to summarise any inferences or conclusions, from

the  above  debate,  as  the  same  are  apparent  from  the  suggestions  and

responses, highlighted above.

43. Reliance was then placed on the decision rendered by a Constitution

Bench of this Court in Samsher Singh v. State of Punjab1.  The question

that arose for consideration in the above case was, whether the Governor as

a constitutional head of the State, could exercise powers or functions of

appointment and removal of members of the subordinate judicial service,

personally?  The contention of the State Government was, that the Governor

was obliged to exercise powers of appointment and removal, conferred on

him by or under the Constitution, like the other executive power of the State

Government, only on the aid and advice of the Council of Ministers, and not

personally.  As against the above stance, the appellants before this Court

placed reliance on the decision in Sardari Lal v. Union of India2, wherein

this Court had held, that the President or the Governor, as the case may be,

on being satisfied  would  make an order under Article  311(2),  and more

particularly,  under  proviso  (c)  thereof.   It  was  further  held,  that  the

1

(1974) 2 SCC 831 2 (1971) 1 SCC 411

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satisfaction of the President or the Governor, in the above matter, was his

“personal satisfaction”.  It was therefore, the contention of the appellants

before this Court, in the above case, that in exercise of powers vested with

the  Governor  under  Article  234,  the  appointment/termination  of

subordinate  judges  was  to  be  made  by  the  Governor  in  exercise  of  his

“personal  discretion”.   It  would  also  be  relevant  to  mention,  that  the

Samsher Singh case1 was decided by a seven-Judge Bench, which examined

the correctness of the decision rendered in the Sardari Lal case2.   While

debating the issue, this Court in the Samsher Singh case1, examined the

distinction between Articles 74 and 163, and held as under:

“16. It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions, there is no provision in Article 74 comparable to Article 163 that the aid and advice is except in so far as he is required to exercise his functions or any of them in his discretion. 17. It is necessary to find out as to why the words ‘in his discretion’ are used in relation to some powers of the Governor and not in the case of the President. 18.  Article     143     in  the  Draft  Constitution  became Article     163     in  the Constitution.  The Draft  Constitution  in  Article     144(6)     said  that  the functions  of  the  Governor  under  that  article  with  respect  to  the appointment and dismissal of Ministers shall be exercised by him in his  discretion.  Draft  Article     144(6)     was  totally  omitted  when Article     144     became  Article     164     in  the  Constitution,  Again  Draft Article     153(3)     said that the functions of the Governor under clauses (a) and (c) of clause (2) of the article shall be exercised by him in his discretion.  Draft  Article     153(3)     was  totally  omitted  when  it  became Article     174     of our Constitution. Draft Article        175     (proviso) said that the Governor "may in his discretion return the Bill  together with a message requesting that the House will  reconsider the Bill".  Those words that “the Governor may in his discretion" were omitted when it became Article     200  . The Governor under Article     200     may return the Bill together with a message requesting that the House will reconsider the  Bill.  Draft  Article     188     dealt  with  provisions  in  case  of  grave emergencies. Clauses (1) and (4) in Draft Article     188     used the words “in his discretion” in relation to exercise of power by the Governor. Draft  Article     188     was  totally  omitted.  Draft  Article     285  (1)  and  (2)

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emphatic  in  his  submission,  that  the  Governor  has  no  role  in  the

disqualification process contemplated under the Tenth Schedule.  And the

Speaker alone, has the authority to effectuate in his exclusive discretion,

the schedule which needed to be adopted, in the process of disqualification

of  MLAs.   As  such,  it  was  asserted,  that  the  fluidity  of  the  democratic

process,  could  not  be  treated  as  some  kind  of  justification,  for  the

Governor’s order and message dated 9.12.2015.

46. Learned  senior  counsel  also  contended,  that  all  actions  of  the

Governor, ought to be in conformity with the aid and advice tendered to him

by the Council of Ministers and the Chief Minister, except when mandated

otherwise.  It was submitted, that where such an express discretion is not

provided  for,  by  or  under  a  constitutional  provision,  the  Governor  is

precluded from exercising his own discretion. Illustratively, he invited our

attention  to  Articles  371-A(1)(b),  371-A(1)(d),  371-A(2)(b)  and  371-A(2)(f),

wherein  the  Articles  themselves  postulate  that  the  Governor  would

discharge his functions in his individual discretion/judgment.  Reliance in

this behalf, was placed on PU Myllai Hlychho v. State of Mizoram3. It was

submitted, that similar discretion has also been vested with the Governor

under  the  provisions  of  the  Fifth  and  the  Sixth  Schedules  to  the

Constitution.  In this behalf, reference was made to State of Meghalaya v.

KA Brhyien Kurkalang4,  Bhuri Nath v.  Sate of  Jammu & Kashmir5,  and

Samatha v. State of A.P.6.  Illustratively, reference was also made to Articles

167, 200 and 356 wherein the Governor is presumed to exercise his powers 3 (2005) 2 SCC 92 4 (1972) 1 SCC 148 5 (1997) 2 SCC 745 6 (1997) 8 SCC 191

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at his own discretion, because the above provisions cannot be construed

otherwise.   It was accordingly asserted, that individual discretion could be

exercised  by  the  Governor,  only  when  the  Governor  was  so  expressly

authorized by a constitutional provision, to exercise his discretion at his

own.  And not otherwise.  

47. It  was pointed out, that the functions of the office of the Governor

vis-a-vis the State Legislature, are comparable to those of the President with

reference  to  the  Parliament  and  the  Central  Government.   In  order  to

highlight the contours of the duties and responsibilities of the Governor,

and  the  extent  to  which  he  can  participate  in  the  legislative  process,

reliance was placed on a treatise by M.N Kaul and S.L. Shakdher – “Practice

and Procedure of Parliament”, (5th Edition),  published by the Lok Sabha

Secretariat.  In order to highlight the extent of the Governor’s power and

authority, on the subject of summoning the Assembly, reference was made

to the following position narrated in Chapter IX, which bears the heading –

“Summoning, Prorogation of the Houses of Parliament and the Dissolution

of the Lok Sabha”:

“Summoning of Lok Sabha- The  power  to  summon  Lok  Sabha  is  vested  in  the  President.  He exercises this power on the recommendation of the Prime Minister or the Cabinet.  He may make informal suggestions to the Prime Minister as to the more convenient date and time of summoning the House, but the ultimate advice in this matter rests with the Prime Minister. In West Bengal consequent on the resignation of eighteen members, including one Minister, from the ruling United Front on 6 November, 1967,  prima  facie  doubts  arose  about  majority  support  to  the Government in the Legislative Assembly.  The Governor desired that the Assembly be summoned on 23 November, so that a confidence vote might  be  taken,  but  the Chief  Minister  said  that  he would  call  the Assembly into session on 18 December, as scheduled.  Thereupon, the Governor dismissed the Ministry on 21 November.

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The crisis  in  West  Bengal,  as  observed by  Speaker  Reddy,  was not unavoidable, for the Governor need not have precipitated matters by insisting on the Chief Minister to convene the Assembly earlier than scheduled, when the interval between the two dates was only of a few days. In a Resolution adopted at the Conference of Presiding Officers, it was recommended that the Government of India should, in the light of the following observations, take urgent and suitable steps in regard to the powers of Governors to summon or prorogue the Legislatures and to dismiss Ministries: That  a  Governor  shall  summon or  prorogue  the  Legislature  on  the advice of the Chief Minister.  A convention shall be developed that the Chief  Minister  may fix  the dates of  summoning or  prorogation after consulting the Presiding Officer concerned.  The Governor may suggest an alternative  date  but  it  shall  be  left  to  the  Chief  Minister  or  the Cabinet to revise their decision or not.  Where, however, there is undue delay  in  summoning  a  Legislative  Assembly  and  the  majority  of members  of  the  Legislative  Assembly  desire  to  discuss  a  Motion  of No-confidence in a Ministry and make a request to that effect in writing to the Chief Minister, the Chief Minister shall advise the Governor to summon the Assembly within a week of such request. The  proposal  to  summon Lok  Sabha  is  initiated  by  the  Minister  of Parliamentary Affairs (and by the Leader of the House in case the Prime Minister is not the Leader of the House) and submitted to the Prime Minister, after an informal consultation with the Speaker in regard to the date of commencement and the duration of the session.  The Prime Minister may agree with the suggestion or refer it to the Cabinet.  The proposal as finally agreed to by the Prime Minister or the Cabinet is formally submitted to the Speaker.  If the Speaker also agrees (in the case of a rare disagreement, he may refer the matter back to the Prime Minister for reconsideration), he directs the Secretary-General to obtain the order of the President to summon Lok Sabha on the date and time specified.   After  the  President  has signed the order,  the  Secretariat notifies it in the Gazette Extraordinary and issues a press communiqué for wider publicity in the Press as well as over the All India Radio and Doordarshan.”

And from Chapter XLI under the title – “Parliament and the States”, our

attention was invited to the following narration:

“Prorogation of the Assembly  As  regards  prorogation,  the  Governor  should  normally  act  on  the advice of his Council of Ministers.  Where a notice of no-confidence against his Ministry is pending in the Assembly, the Governor should first satisfy himself that the notice is not frivolous and is a genuine exercise of the parliamentary right of the Opposition to challenge the Government’s majority.  If so satisfied, the Governor should ask the

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Chief  Minister  to  face  the  Assembly  and  allow  the  motion  to  be debated and voted upon.  To prorogue the Assembly otherwise would amount to avoidance of responsibility of the Council of Ministers to the Assembly. If  an Assembly  or  Legislature  has been  prorogued  in  a  State,  the matter  may be  raised in the  Lok Sabha and the Speaker  may,  in certain circumstances, allow a discussion thereon. Dissolution of the Assembly  Normally a Governor should exercise the power of dissolution on the advice of the Council  of Ministers.   If  a Chief  Minister  who enjoys majority support advises dissolution, the Governor must accept the advice,  but  if  he  advises  dissolution  after  losing  his  majority,  the Governor need accept his advice only if the Ministry suffers a defeat on a question of major policy and the Chief Minister wishes to appeal to the electorate for a mandate on that policy.  In the case of a Chief Minister heading a single party Government which has been returned by the electorate  in absolute  majority,  if  the ruling party  loses its majority because of defection by at least one-third of its members and the Chief  Minister  recommends dissolution so as to enable him to make  a  fresh  appeal  to  the  electorate,  the  Governor  may  grant  a dissolution.   The mere  fact  that  some members  of  the  party  have defected  does  not  necessarily  prove  that  the  party  has  lost  the confidence  of  the  electorate.  If  there  is  a  no-confidence  motion against  a  Ministry  and  the  chief  Minister,  instead  of  facing  the Assembly,  advises  the  Governor  to  dissolve  the  Assembly,  the Governor  need  not  accept  such  advice,  but  should  ask  the  Chief Minister  to  get  the  verdict  of  the  Assembly  on  the  no-confidence motion. In a case where the Chief  Minister  recommends dissolution of  the Assembly  when  the  Budget  has  not  been  voted  and  the  Ministry claims majority support, the Ministry in such a situation should face the Assembly and get the Budget passed before seeking dissolution for whatever reason.  If, on the other hand, there is reason to believe that the Chief Minister no longer commands majority support, it is clearly open to the Governor to take steps to ascertain if it is possible to  install  another  Ministry  which  is  able  to  command  majority support and get the Budget passed. Failing both, the Governor has no alternative except to make a report to the President under article 356 because  Parliament  alone  could  then  sanction  appropriation  for carrying on the administration of the State. A Governor is not bound to accept the advice of a Chief Minister to dissolve  the  Assembly  if  the  Chief  Minister  has  lost  the  majority support.”

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48. In  order  to  appreciate  and  effectively  interpret  Article  174,  it  was

submitted, that it is necessary to examine draft Article 153 drawn by the

Drafting Committee.  The same is reproduced below:

“153. Sessions of the State Legislature, propagation and dissolution. – (1)  The  House  or  Houses  of  the  Legislature  of  the  State  shall  be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session. (2) Subject to the provisions of this article, the Governor may, from time to time – (a)  summon the Houses or either House to meet at such time and place as he thinks fit; (b) prorogue the House or Houses; (c) dissolve the Legislative Assembly. (3)  The functions of  the Governor under sub-clauses (a)  and (c)  of clause (2) of this article shall be exercised by him in his discretion.”

In  the  written  comments  submitted  to  draft  Article  153,  Jayaprakash

Narayan suggested, that clause (3) of Article 153 should be deleted.  It was

his  submission,  that  there  was  no  reason  why  the  Governor  in  his

discretion, should be permitted to summon or dissolve the House, when no

such discretionary power was being extended to the President (– with regard

to  summoning  and  dissolution,  of  the  Parliament).   Another  reason

expressed by him for  deleting the aforesaid clause (3)  was, the changed

position of selection of Governors, whereby Governors are to be nominated

by the President, instead of being elected, as hitherto before.  When draft

Article  153 came up for  debate,  Mohd.  Tahir  suggested,  addition of  the

following words at the end of sub-clause (c) of clause (2) – “If the Governor is

satisfied  that  the  administration  is  failing  and the Ministry  has become

unstable”.   It  was  canvassed,  that  merely  because  a  Governor  did  not

subscribe  to  the  views  of  the  majority  party,  he  should  not  have  the

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discretion to dissolve the House.  It was asserted, that there could be no

other reason for the dissolution of a House, except mal-administration and

instability of the Government.  It was therefore, that Dr. B.R. Ambedkar

moved, that clause (3)  of  draft  Article  153 be omitted,  as the same was

inconsistent with the scheme of a “constitutional” Governor.  When put to

vote, the amendment suggested by Mohd. Tahir was rejected, and the one

suggested by Dr. B.R. Ambedkar was adopted.  The above draft Article was

renumbered as Article 174 of the Constitution.

49. Based on a collective reading of draft Article 153, and Article 174 of

the Constitution,  according to learned counsel,  it  was apparent that the

original intention of the Constituent Assembly, to vest personal discretion

with the Governor, for summoning, proroguing and dissolving the House,

was overruled.  The above historical background, it was urged, should not

be overlooked, and that, Article 174 should be interpreted in a manner as

would  exclude the personal  discretion of  the  Governor,  in  the matter  of

summoning, proroguing or dissolving the House(s) of the State Legislature,

in consonance with the obvious intention of the framers of the Constitution.

Learned counsel for the appellants,  suggested while concluding, that the

Governor in the present case, having no discretion to unilaterally summon

the Assembly, having done so, while passing the order dated 9.12.2015, had

acted unconstitutionally.  Consequently,  according to learned counsel,  all

steps taken by the Assembly, pursuant to the order dated 9.12.2015 were

liable to be set aside, as unconstitutional and void.

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50. The  appellants  also  assailed  the  validity  of  the  message  of  the

Governor, dated 9.12.2015.  In order to demonstrate the contours of the

authority of the Governor under Article 175, it was pointed out, that the

precursor to Article 175, was Section 63 of the Government of India Act,

1935, which is extracted below:

“63.  Right  of  Governor  to  address,  and  send  messages  to, Chambers.-(l)  The  Governor  may  in  his  discretion  address  the Legislative Assembly or, in the case of a Province having a Legislative Council,  either  Chamber  of  the  Provincial  Legislature  or  both Chambers assembled together, and may for that purpose require the attendance of members.  (2) The Governor may in his discretion send messages to the Chamber or Chambers of the Provincial Legislature, whether with respect to a Bill then pending in the Legislature or otherwise, and a Chamber to whom.  any  message  is  so  sent  shall  with  all  convenient  dispatch consider any matter which they are required by the message to take into consideration.”

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.

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51. It  was  also  asserted,  that  the  message  of  the  Governor  dated

9.12.2015,  contained directions to  the  House.   The aforesaid  directions,

according to learned counsel, would not fall within the purview of messages

contemplated under Article 175(2).  It was pointed out, that the ‘Conduct of

Business Rules’  framed under Article  208, assigned no such role  to  the

Governor.  A Governor, according to learned counsel, cannot determine or

interfere with, any issue with reference to the conduct of business, within

the Legislative Assembly.  In support of the above proposition, reliance was

placed on Rule 21, of the ‘Conduct of Business Rules’, which is extracted

below:

“Arrangement  of  Business,  Provisional  Programme  and  List  of Business. (a) Arrangement of Business: 21.  Arrangement  of  Govt.  business.  On  days  allotted  for  the transaction  of  Government  business,  such  business  shall  have precedence and the Secretary  shall  arrange that  business in such order as the Speaker may, after consultation with the Leader of the House, determine: Provided that such order of business shall not be varied on the day that business is set down for disposal unless the Speaker is satisfied that there is sufficient ground for such variation.”

Based  on  Rule  21,  it  was  submitted,  that  a  Governor  has  no  right  to

determine the agenda of the business of the House.  Or even, the sequence

in which the business of the House, was to be conducted.  To the above

extent, it was submitted, that the message of the Governor dated 9.12.2015,

was not only unconstitutional, but also violative of Rule 21. It was therefore

submitted, that it was not open to the Governor, to have directed the House,

through his message dated 9.12.2015, to take up the resolution for removal

of the Speaker, as the first item on the agenda, on 16.12.2015.  A reference

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was also made to Rules 152 to 154 of  the ‘Conduct of  Business Rules’,

which are extracted below:

“152.  Leave  of  House  to  take  up  resolution.-  (1)  Subject  to  the provisions of Article 181 of the Constitution, the Speaker or the Deputy Speaker or such other person as is referred to in clause (2) of Article 180 of the Constitution shall preside when a motion under rule 151 is taken up for consideration. (2)  The  member  in  whose  name  the  motion  stands  on  the  list  of business shall, except when he wishes to withdraw it, move the motion when called upon to do so, but no speech shall be permitted at this stage. 153. Inclusion of Resolution in the list of.-  On the appointed day the Resolution shall be included in the list of business to be taken up after the questions and before any other  business for  the day is  entered upon. 154.  Time  limit  for  speeches.  –  Except  with  the  permission  of  the Speaker or the person presiding, a speech on the Resolution shall not exceed fifteen minutes in duration: Provided that the mover of the Resolution when moving the same may speak for such longer time as the Speaker or the person presiding may permit.”

Based on the above Rules, it was urged, that the entire proceedings in the

Assembly, are to be regulated by the Speaker (or the Deputy Speaker), and

that, the Governor has no role in the proceedings of the House.

52. 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 accordingly 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.  The

Governor’s  connectivity  and  relationship  with  the  House,  according  to

learned  counsel,  was  based  on  the  aid  and  advice  of  the  Council  of

Ministers headed by the Chief Minister.   

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53. It was submitted, that the Governor has no authority whatsoever, to

get embroiled with matters falling under the Tenth Schedule.  It was urged,

that  the  Speaker,  was  the  sole  adjudicatory  authority,  under  the  Tenth

Schedule, and his actions thereunder cannot be interfered with, by or at the

behest  of  the  Governor.   It  was  submitted,  that  even  the  Legislative

Assembly itself, could not interfere with the Speaker’s determination, under

the Tenth Schedule.   It  was urged,  that on the same analogy,  even the

Deputy Speaker of the House, had no authority whatsoever, to set aside an

order passed by the Speaker under the Tenth Schedule.  It was pointed out,

that even the Speaker himself  had no power or discretion to review the

order of disqualification dated 15.12.2015 (as in the present case).  In this

behalf, reliance was placed on the following observations recorded in Dr.

Kashinath G. Jalmi v. The Speaker7:

“49. The power of review which, it  is suggested by counsel for the respondents, inheres in the Speaker by necessary implication has to be found in the provisions made in the Tenth Schedule alone, and not elsewhere.  Para  7  has  to  be  treated  as  non-existent  in  the  Tenth Schedule from the very inception, as earlier indicated. As held by the majority in Kihoto Hollohan 1992 Supp (2) SCC 651, judicial review is available  against an order of  disqualification made by the Speaker under  para  6  of  the  Tenth  Schedule,  notwithstanding  the  finality mentioned therein. It is on account of the nature of finality attaching by  virtue  of  para  6,  that  the  judicial  review  available  against  the Speaker's order has been labelled as limited in para 110 (at page 711 of SCC) of the decision in Kihoto Hollohan and the expression has to be understood in that sense distinguished from the wide power in an appeal, and no more. As held in Kihoto Hollohan, the Speaker's order is final being subject only to judicial review, according to the settled parameters of the exercise of power of judicial review in such cases, which it  is  not  necessary  to  elaborate  in  the  present  context.  The existence  of  judicial  review  against  the  Speaker's  order  of disqualification made under para 6 is itself a strong indication to the contrary  that  there  can  be  no  inherent  power  of  review  in  the Speaker, read in the Tenth Schedule by necessary implication. The

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need for correction of errors in the Speaker's order made under the Tenth Schedule is met by the availability of judicial review against the same, as held in Kihoto Hollohan. 50. In our opinion there is no merit in the submission that the power of  review  inheres  in  the  Speaker  under  the  Tenth  Schedule  as  a necessary  incident  of  his  jurisdiction  to  decide  the  question  of disqualification; or that such a power existed till November 12, 1991 when  the  decision  in  Kihota  Hollohan  (1992)  1  SCC  309  was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review.”

54. It was the pointed assertion of learned senior counsel, that the order

of  the  Deputy  Speaker  dated  16.12.2015,  quashing  the  Speaker’s  order

dated 15.12.2015 (disqualifying 14 members of the House, belonging to the

INC),  was  totally  without  jurisdiction.   It  was  also  urged,  that  if  any

individual including the Deputy Speaker of the Assembly and/or the other

13  disqualified  members  of  the  House  were  aggrieved,  they  could  have

legitimately taken recourse to judicial review, either before the jurisdictional

High Court under Article 226, or before this Court under Article 32.  It was

pointed  out,  that  the  disqualified  MLAs  had  actually  assailed  their

disqualification orders before the High Court. It was accordingly submitted,

that the decision of the Deputy Speaker, quashing the order of the Speaker

dated  15.12.2015  (disqualifying  14  MLAs  of  the  INC),  was  per  se

unconstitutional,  it  lacked  jurisdictional  authority,  and  as  such,  was

unacceptable in law.

55. In addition to the above, it was submitted, that the Deputy Speaker of

the Assembly – Tenzing Norbu Thongdok was one of the 14 INC MLAs of the

Assembly disqualified by the Speaker vide his order dated 15.12.2015.  As

such, it was urged, that it was not open to the Deputy Speaker, to set aside

the order of his own disqualification. It was submitted, that the aforesaid

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determination at the hands of the Deputy Speaker, amounted to the Deputy

Speaker acting as a judge in his own cause.  It was pointed out, that not

only his action was illegal, but the same was also violative of the rules of

natural  justice.   With  reference  to  the  importance  of  the  validity  (or

invalidity)  of  the  order  of  the  Deputy  Speaker  dated  16.12.2015,  it  was

pointed out, that in case the above order was found by this Court to be

unacceptable in law, the participation of the 14 disqualified MLAs belonging

to the INC, in the proceedings of the House on 16.12.2016 – and thereafter,

was liable to be considered as non est in the eyes of law.   It is important for

us to  record,  that  the  validity  of  above order  of  the  Deputy Speaker,  is

sub-judice before the jurisdictional High Court at Guwahati.

56. It  was  submitted,  that  the  proceedings  of  the  Assembly  held  with

effect from 16.12.2015, till the House was prorogued on 18.12.2015 with

the participation  of  the  14 disqualified  MLAs belonging  to  the  INC,  was

nothing  but  an  overt  political  act  of  the  BJP  MLAs,  supported  by  the

Governor,  to  undermine  the  democratic  process  in  the  State.  It  was

submitted, that once the Governor had summoned the leader of the political

party, having the largest strength amongst the different political parties, to

form Government, without any support from any other political party, the

action  of  the  Governor  expressed through the order  and message  dated

9.12.2015 was absolutely undemocratic, and unconstitutional.

57. Mr.  F.S.  Nariman,  learned Senior  Advocate  entered appearance,  in

support of the claim raised by the appellants.  He represented Bamang Felix

– Deputy Chief Whip of the INC.  In his opening statement, Mr. Nariman

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adopted the factual and the legal submissions advanced on behalf of Nabam

Rebia.  He pointed out, that he affirmed the submissions advanced by Mr.

Kapil  Sibal,  but  would  assist  the  Court,  by  projecting  some  further

constitutional aspects.

58. In the first instance, learned senior counsel placed reliance on two

reports.   The  first  –  the  Justice  Sarkaria  Commission  report,  on

“Centre-State  Relations”,  and  the  second  –  the  Justice  M.M.  Punchhi

Commission  report,  on  “Constitutional  Governance  and  Management  of

Centre-State Relations”.  It was pointed out, that in the Justice Sarkaria

Commission report, Chapter 5 was attributed to the role of the Governor.

And  in  the  Justice  M.M.  Punchhi  Commission  report,  Chapter  4  was

ascribed to the role of the Governor.  It was asserted, that reference to both

the reports would be repetitive, inasmuch as, the conclusions drawn in the

Justice Sarkaria Commission report, had been substantially affirmed and

reiterated  in  the  Justice  M.M.  Punchhi  Commission  report.   It  was

therefore,  that learned counsel  placed reliance only on the Justice M.M.

Punchhi Commission report. He invited our attention to paragraph 4.1.03,

of  the  report,  wherein  the  Commission adopted the reasoning  expressed

during  the  proceedings  of  the  Constituent  Assembly  for  arriving  at  its

conclusions.   Reference  was  also  made  to  paragraphs  4.2.09  to  4.2.15

highlighting the fact, that the Governor in exercise of his functions, cannot

act in his individual capacity, especially when the function sought to be

discharged  (by  the  Governor),  is  in  the  realm of  executive  dispensation.

Reliance was also placed on paragraph 4.3 of the report (in its entirety),

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which  expounds the proposition, that it is not expected of the Governor to

embroil himself in day-to-day activities of rival political parties, and that,

Governors are expected to be independent, and to act in a manner devoid of

any political consideration. It was pointed out, that independence of such

actions  would  include,  keeping  the  State  Legislature  and  the  political

executive,  shielded  from  the  political  will  of  the  Union  Government.

Especially  when  the  concerned  State  and  the  Union  were  not  being

governed by the same political party/conglomerate. Last of all, reliance was

placed on paragraph 4.5, and more particularly, on sub-paragraph 4.5.03,

to demonstrate, that a reading of the constitutional provisions had resulted

in the two Commissions very clearly expounding, that the Governor was

bound to act in consonance with the aid and advice tendered to him, by the

Council of Ministers and the Chief Minister.  It was pointed out, that the

aforesaid mandate was also applicable to situations, where provisions of the

Constitution had used expressions like “he thinks fit”.  It was pointed out,

that only in situations, where a constitutional provision expressly requires

the Governor to exercise his functions in his own discretion, it is open to the

Governor  to  do  so.   Only  then,  the  exercise  of  such  discretion,  will  be

deemed to have been constitutionally exercised. Paragraphs of the Justice

M.M. Punchhi Commission report, relied upon by learned senior counsel,

are extracted hereunder:

“4.1.03 Dr. B.R. Ambedkar, highlighted the Constitutional role of the Governor in following terms:  "The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and I think the House will do well to bear in mind this distinction. This Article (Article 167) certainly, it

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should  be  borne in  mind,  does  not  confer  upon the Governor  the power to overrule the Ministry on any particular matter. Even under this  Article,  the  Governor  is  bound  to  accept  the  advice  of  the Ministry… This Article, nowhere, either in clause (a) or clause (b) or clause (c),  says that the Governor in any particular  circumstances may  overrule  the  Ministry.  Therefore,  the  criticism  that  has  been made that this Article somehow enables the Governor to interfere or to upset the decision of the Cabinet is entirely beside the point, and completely mistaken.  A distinction has been made between the functions of the Governor and the duties which the Governor has to perform. My submission is that  although  the  Governor  has  no  functions  still,  even  the Constitutional Governor, that he is, has certain duties to perform. His duties according to me, may be classified in two parts. One is, that he has to retain the Ministry in office. Because, the Ministry is to hold office during his pleasure, he has to see whether and when he should exercise his pleasure against the Ministry. The second duty which the Governor has, and must have, is to advice the Ministry, to warn the Ministry, to suggest to the Ministry an alternative and to ask for a reconsideration.  I  do  not  think  that  anybody  in  this  House  will question the fact that the Governor should have this duty cast upon him; otherwise, he would be an absolutely unnecessary functionary: no  good  at  all.  He  is  the  representative  not  of  a  party;  he  is  the representative of the people as a whole of the State. It is in the name of the people that he carries on the administration. He must see that the administration is carried on at a level which may be regarded as good,  efficient,  honest  administration.  I  submit  that  he  cannot discharge the constitutional functions of a Governor which I have just referred to unless he is in a position to obtain the information… It is to enable the Governor to discharge his functions in respect of a good and pure administration that we propose to give the Governor the power to call for any information… 4.2.09  The  Governor  does  not  exercise  the  executive  functions individually  or  personally.  The  State  Government  at  various  levels takes executive  action in the name of  the Governor in accordance with the rules of business framed under Article 166(3). Hence, it is the State Government and not the Governor who may sue or be sued in respect of any action taken in the exercise and performance of the powers and duties of his office [Articles 361, 299(2) and 300]. 4.2.10 The Governor enjoys the same privileges as the President does under Article 361 and he stands, in this respect, on the same footing. Article 361 states that neither the President nor the Governor can be sued  for  executive  actions  of  the  Government.  The  reason  is  that neither  the  President  nor  the  Governor  exercises  the  executive functions individually or personally.  4.2.11 The Governor is not answerable to any court for the exercise and the performance of the powers and duties of his office, or for 'any act  done  or  purporting  to  be  done  by  him'  in  the  exercise  and

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performance of those duties. The words 'purporting to be done by him' are of very wide import, and even though, the act is outside the scope of his powers, so long it is professed to be done in pursuance of the Constitution, the Governor will be protected.  4.2.12  Lack  of  bona-fide  vitiates  executive  action,  but  due  to  the operation of Article 361 the Governor is not personally responsible. Even where the Governor's bonafide is in question while exercising his discretionary powers, such as appointment and dismissal of Chief Minister, he cannot be called to enter upon defense. The Madras High Court had held that a combined reading of Articles 154, 163 and 361 would show that the immunity against answerability to any Court is regarding  functions  exercised  by  the  Governor  qua  Governor  and those  functions  in  respect  of  which  he  acts  on  the  advice  of  the Council of Ministers or in his discretion. 4.2.13  In  the  recent  case  of  Rameshwar  Prasad,  Chief  Justice Sabharwal,  while  stating  the  majority  opinion  held:  The  immunity granted to the Governor under Article 361(1) does not affect the power of  the  Court  to  judicially  scrutinize  the  attack  made  to  the proclamation issued under Article 361(1) of the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and  has  no  existence  in  the  eyes  of  law.  Even,  the  expression "purporting to be done" in Article 361(1) does not cover acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 361(1) shall have to meet the challenge.  The personal immunity from answerability provided in Article 361(1) does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala fides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal mala fides are alleged and established, it would not be open  to  the  Governments  to  urge  that  the  same  cannot  be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal mala fides are made. Article 361(1) does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court  to  issue  notice  or  making  the  President  or  the  Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court. 4.2.14  In a very limited  field,  however,  the Governor may exercise certain functions in his discretion, as provided in Article 163(1). The first part of Article 163(1) requires the Governor to act on the advice of  his Council  of  Ministers.  There is,  however,  an exception in the latter part of the clause in regard to matters where he is by or under the Constitution required to function in his discretion. The expression

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"required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution" means that the necessity  to  exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution." 4.2.15  Thus,  the scope of  discretionary powers as provided in the exception  in  clause  (1)  and  in  clause  (2)  of  Article  163  has  been limited by the clear language of the two clauses. It  is  an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head  of  the  State  should  not  be  enlarged  at  the  cost  of  the  real executive,  viz.  the Council  of  Ministers.  The scope of  discretionary powers  has  to  be  strictly  construed,  effectively  dispelling  the apprehension,  if  any,  that  the  area  for  the  exercise  of  discretion covers all  or any of  the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council  of Ministers.  The area for the exercise of his discretion  is  limited.  Even  this  limited  area,  his  choice  of  action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution. 4.3 Role of Governor in Management of Centre-State Relations  4.3.01 The role of the Governor has been a key issue in the matters of Central State relations. The Constitution of India envisages three tiers of Government - the Union, State and the Local Self-Government. In the light of a volatile Political system prevailing today, it is pertinent to recognize the crucial role played by the Governors in the working of the democratic framework. Addressing the Conference of Governors in June 2005, the President of India, Dr. A.P.J. Abdul Kalam stressed the relevance of recommendations of the Sarkaria Commission and observed that "While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system. “The  Prime  Minister,  Dr.  Manmohan  Singh  on  the  same occasion  noted  that  "you  are  the  representatives  of  the  centre  in states  and  hence,  you  bring  a  national  perspective  to  state  level actions and activities”.  The then Vice-President  of  India,  Shri  G.S. Pathak, had remarked in 1970 that "in the sphere which is bound by the  advice  of  the  Council  of  Ministers,  for  obvious  reasons,  the Governor must be independent of the center" as there may be cases "where the advice of the Center may clash with advice of the State Council  of  Ministers"  and  that  "in  such  cases  the  Governor  must ignore the Centre's "advice" and act on the advice of his Council of Ministers."

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4.3.02  One highly significant role which he (Governor)  has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The Governor  is  not  amenable  to  the  directions  of  the  Government  of India,  nor  is  he  accountable  to  them for  the  manner  in  which he carries  out  his  functions  and  duties.  He  is  an  independent constitutional  office  which  is  not  subject  to  the  control  of  the Government of India.  4.3.03 The Court in Rameshwar Prasad case affirmed the following views  of  the  Sarkaria  Commission  that  the  Governor  needs  to discharge "dual responsibility" to the Union and the State. Further, most of the safeguards as regards the working of the Governor will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of  conventions  and  practices,  to  be  understood  in  their  proper perspective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties.  4.5  Powers  of  the  Governor  in  the  Context  of  Harmonious Centre-State Relations  Article 163 of the Constitution, unlike Article 74, carves out two ways in which the power of the Governor must be exercised. One, in which the Governor has to act in accordance with the aid and advice of the Council  of  Ministers  and  two,  where  he  exercises  his  personal discretion. The concept of  the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. The normal rule is that the Governor acts on the aid and advice of the Council  of  Ministers,  but  there  are  exceptions  under  which  the Governor can act  in his own discretion. The powers in exercise of which the Governor has to use his personal discretion have now been settled through judicial pronouncements. In relation to other powers, even though the Constitution uses phrases like "he thinks fit" and "in exercise  of  his  discretion",  the  Governor  must  act  on the  aid  and advise of the Council of Ministers. Article  163(2)  gives  an  impression  that  the  Governor  has  a  wide, undefined area of discretionary powers even outside situations where the Constitution has expressly provided for it.  Such an impression needs to be dispelled. The Commission is of the view that the scope of discretionary  powers  under  Article  163(2)  has  to  be  narrowly construed,  effectively  dispelling  the  apprehension,  if  any,  that  the so-called discretionary powers extends to all  the functions that the Governor is empowered under the Constitution. Article 163 does not give  the  Governor  a  general  discretionary  power  to  act  against  or without the advice of his Council of Ministers. In fact, the area for the exercise  of  discretion  is  limited  and even in  this  limited  area,  his choice of action should not be nor appear to be arbitrary or fanciful. It

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must  be  a  choice  dictated  by  reason,  activated  by  good faith  and tempered by caution.  The Governor's discretionary powers are the following: to give assent or withhold or refer a Bill for Presidential assent under Article 200; the appointment of the Chief Minister under Article 164; dismissal of a Government which has lost confidence but refuses to quit, since the Chief  Minister  holds  office  during  the  pleasure  of  the  Governor; dissolution of the House under Article 174; Governor's report under Article 356; Governor's responsibility for certain regions under Article 371-A, 371-C, 371-E, 371-H etc. These aspects are now considered below: 4.5.03 Dismissal of the Chief Minister  It has already been stated that the Council of Ministers occupy office upon the pleasure of the Governor.  Further, Article 164 states that Council of Ministers shall be collectively responsible to the Legislative Assembly  of  the  State.  So  the  question  arose  as  to  whether  the discretion of the Governor or his pleasure is curtailed by the fact that the Ministers no longer enjoy the confidence of  the House.  Courts have time and again clarified that the discretion of the Governor is not  fettered  by  any  condition  or  restriction.  It  was  held  that  the Assembly could only express want of confidence in the Ministry; it can go no further. The power to dismiss solely and entirely rests with the Governor. However, the fact that the Ministry has lost confidence is a major consideration for its dismissal.  The Sarkaria Commission recommended that if a Government loses its majority, it should be given a chance to prove whether it has a majority or not on the floor of the House. The Governor should not dismiss a Council of Ministers, unless the Legislative Assembly has expressed on the floor of the House its want of confidence in it. He should advise the Chief Minister to summon the Assembly as early as possible. If the Chief Minister does not accept the Governor's advice, the Governor may, summon the Assembly for the specific purpose of testing  the  majority  of  the  Ministry.  The  Assembly  should  be summoned  to  meet  early  within  a  reasonable  time.  What  is "reasonable"  will  depend  on  the  circumstances  of  each  case. Generally, a period of 30 days will be reasonable, unless there is very urgent  business to  be transacted,  such as passing  the  Budget,  in which case, a shorter period may be indicated. On the question of dismissal of a Chief Minister, the Governor should invariably insist on the Chief Minister proving his majority on the floor of the House for which he should prescribe a  time limit.  This view of  the  Sarkaria Commission ought to be considered in the form of a Constitutional Amendment. 4.5.04  Summoning,  proroguing  and  dissolution  of  the  legislative assembly  Article 174 of the Constitution empowers the Governor to summon, prorogue or dissolve the House. It is a well-recognised principle that, so  long  as  the  Council  of  Ministers  enjoys  the  confidence  of  the

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Assembly,  its  advice  in  these  matters,  unless  patently unconstitutional must be deemed as binding on the Governor. It is only where such advice, if acted upon, would lead to an infringement of a constitutional provision, or where the Council of Ministers has ceased to  enjoy  the  confidence of  the  Assembly,  that  the  question arises whether the Governor may act in the exercise of his discretion. The Sarkaria  Commission recommended that,  if  the Chief  Minister neglects  or  refuses  to  summon the  Assembly  for  holding  a  "Floor Test", the Governor should summon the Assembly for the purpose. As regards  proroguing  a  House  of  Legislature,  the  Governor  should normally act on the advice of the Chief Minister. But where the latter advises prorogation when a notice of  no-confidence motion against the Ministry is pending, the Governor should not straightaway accept the advice.  If  he finds that  the  no-confidence motion represents  a legitimate challenge from the Opposition, he should advice the Chief Minister  to  postpone  prorogation  and  face  the  motion.  As  far  as dissolution of the House is concerned, the Governor is bound by the decision taken by the Chief Minister who has majority. However, if the advice is rendered by a Chief Minister who doesn't have majority, then the Governor can try to see if an alternate government can be formed and only if  that isn't possible, should the house be dissolved. This Commission  reiterates  the  recommendations  of  the  Sarkaria Commission in this regard.”

59. Learned senior  counsel  then placed reliance on Article  166,  which

postulates the manner of conducting the executive business of the State

Government.  It was pointed out, that the Governor, has been assigned the

responsibility  of  framing  rules  under  Article  166.   For  the  State  of

Arunachal Pradesh, these rules were notified on 9.4.1987 – the Arunachal

Pradesh Rules of Executive Business, 1987 (hereinafter referred to as, the

Rules of Executive Business).  It was submitted, that Part-I of the Rules of

Executive  Business  containing  Rules  4  to  12  are  clustered  under  the

heading  –  “Allocation  and  Disposal  of  Business”.   Whereas  Part-II

containing Rules 13 to 21, are grouped under the heading – “Procedure of

the Cabinet”.  Learned counsel thereupon, invited our attention to Rule 4

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from Part-I and Rules 13 and 14 from Part-II,  which are being extracted

hereunder:

Part I xxx xxx xxx

Rule 4  “4. The business of the Government shall be transacted in its different departments.   Allocation  of  subjects  among  the  departments  shall continue to be as set out in the Government of Arunachal Pradesh (Allocation) Rules, 1975 (as notified from time to time) until new Rules are prescribed.”

Part II xxx xxx xxx

Rules 13 and 14  “13. The Chief Secretary shall be the Secretary to the Cabinet and another officer shall be designated to be the Joint Secretary to the Cabinet.  In the absence of both the Chief Secretary and the Joint Secretary  to  the  Cabinet  the  Chief  Minister  may  appoint  for  this purpose  any  other  Secretary  to  function  as  the  Secretary  to  the Cabinet. 14. All cases referred to as in the schedule shall, after consideration by the Minister  be  sent  to  the  Secretary  with  a view to  obtaining orders of the Chief Minister for circulation of the case under Rule 16 or for bringing it for consideration at a meeting of the Cabinet.”

60. Learned counsel then drew our attention to the Schedule referred to

in Rules 8 and 14, and further invited our attention, to item no.4 in the said

Schedule which is extracted below:

“Proposals  to  summon,  prorogue  or  dissolve  the  legislature  of  the State”.

It was urged on behalf of the appellants, that in the matter of summoning

the House for 16.12.2015, the procedure contemplated under Rules 8, 13

and 14 ought to have been adopted.  But the same was breached.  Learned

senior  counsel  further  pointed  out,  that  while  passing  the  order  dated

3.11.2015 (when the same Governor had summoned the 6th session of the

House to meet at 10 a.m. on 14.1.2016), the procedure contemplated under

Rules 8 and 14 was duly followed.  Learned counsel then referred to the

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summoning particulars to demonstrate, that the proposal to summon the

6th  session  of  the  House,  had emanated  from the  Chief  Minister.   The

Court’s  attention  was  also  invited  to  the  fact,  that  the  Speaker  of  the

Assembly had also been consulted, on the matter, as also the duration of

the 6th session, whereupon, the Chief Minister submitted the outcome on

the matter to the Governor.  It was pointed out, that the Governor had duly

accepted the proposal, and had scheduled the 6th session of the Assembly,

to meet at 10 a.m. on 14.1.2016.  It was asserted, that the above rules

framed under Article 166 were binding and every constitutional authority,

including  the  Governor  of  the  State,  who  is  bound  to  carry  out  his

functions/duties in compliance therewith.

61. In addition to the above, our attention was invited to the ‘Conduct of

Business  Rules’,  framed  under  Article  208.   Learned  senior  counsel

pointedly drew our attention to Rule 3, which is extracted hereunder:

“3. The Chief Minister shall, in consultation with the Speaker, fix the date of commencement and the duration of the session, advise the Governor  for  summoning  the  Assembly  under  Article  174  of  the Constitution.”  

A perusal of the above rule, according to learned senior counsel, postulates

a procedure, similar to the one contemplated under the Rules of Executive

Business, framed under Article 166.  It was submitted, that in view of the

clear mandate of Rule 3 extracted above, not only the Rules of Executive

Business, framed under Article 166 must be deemed to have been breached

by the Governor (through his order dated 9.12.2015), the Governor must

also be deemed to have breached Rule 3 of the Conduct of Business Rules,

framed  under  Article  208.   It  was  therefore  the  contention  of  learned

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counsel for the appellants, that the order of the Governor dated 9.12.2015,

preponing the 6th session of the Assembly from the earlier determined date

– 14.01.2016, by summoning it for 16.12.2015, was in breach of the rules

framed under the Constitution, and was liable to be set aside.   

The foundation of the respondents’ case:

The third sequence of facts:

62. A notice of resolution for the removal of the Speaker – Nabam Rebia,

was moved on 19.11.2015.  This factual position is not in dispute.  The

authors  of  this  notice  were  13 MLAs –  11  belonging  to  the  BJP  and 2

Independent MLAs.  It was submitted on behalf of the appellants, that a

notice of resolution dated 16.11.2015 was moved by 16 MLAs, all belonging

to  the  INC,  for  the  removal  of  the  Deputy  Speaker  -  Tenzing  Norbu

Thongdok.   This  factual  position  is  disputed  at  the  hands  of  the

respondents.  The claim of the respondents before this Court was, that no

such resolution had been moved under Article 179, for the removal of the

Deputy Speaker. During the course of hearing, we ventured to determine

the factual position.  In support of their assertion, learned counsel for the

appellants  invited  our  attention  to  a  xerox  copy  of  the  notice  dated

16.11.2015, which is reproduced below:

“To, The Secretary Arunachal Pradesh Legislative Assembly Naharlagun. Sub: Resolution for Removal of Deputy Speaker, under Article 179(c)

of Constitution of India and Rule 151 (Chapter XX) of Rules of procedure and conduct of Business AP Legislative Assembly.

Sir, We the Members of the 6th Arunachal Pradesh Legislative Assembly do here by move this resolution as per the Articles and Rules quoted in

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the subject cited above.  The specific Charges against the incumbent Deputy Speaker warranting his removal from the post are as below: 1. The  Deputy  Speaker  is  absent  from  attending  his  office continuously for a period three months which shows disability to hold the post of Deputy Speaker 2. The  Deputy  Speaker  is  involved  in  active  political  dissidence activity and thereby demeaning the office of the Deputy Speaker and also there by the neutrality and sanctity of the Legislative Assembly is at stake. Therefore, we request you to kindly accept this resolution and initiate necessary action immediately.

Yours Sincerely”

All 16 MLAs had affixed their signatures, below the above notice.  Having

perused the aforesaid document, and having found no clear endorsements

thereon  (depicting  the  receipt  thereof,  in  the  office  of  the  Secretary,

Arunachal Pradesh Legislative Assembly), we called for the original.  During

the  hearing,  learned  counsel  representing  the  appellants  adopted  the

stance, that the original resolution was in the custody of the respondents,

whereas,  learned  counsel  for  the  respondents  pleaded  to  the  contrary,

namely, that the same was in the custody of the appellants.  It is therefore

apparent,  that  even  though  the  Court  desired  to  peruse  the  original

resolution moved by 16 MLAs for the removal of the Deputy Speaker, the

same was never produced for  consideration.   For sure the appellants,  if

nothing else, could have filed an affidavit of the concerned 16 MLAs, along

with a copy of the resolution.  But they did nothing of the sort.

63. Despite the above, it was asserted on behalf of the respondents, that

there was substantial material on the record of the case, to demonstrate

that such a resolution had never been moved.  In order to establish that the

notice dated 16.11.2015 was actually submitted, learned counsel for the

appellants referred to a letter  dated 7.12.2015 addressed by the Deputy

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Secretary – Minik Damin (attached to the Governor), to the Secretary of the

Legislative  Assembly.   The  above  communication  which  bore  reference

number GS/I-115/00 (Vol.II)/6742, is being extracted hereunder:

“To   The Secretary, Arunachal Pradesh Legislative Assembly, Arunachal Pradesh, Naharlagun.

Sub: Notice of Resolution for removal of Deputy Speaker. Sir,

I am directed to inform you that there is a Notice of Resolution for removal of Deputy Speaker.  A copy of the resolution may kindly be  forwarded  to  this  Office  for  information  and  perusal  of  His Excellency the Governor.  The Hon’ble Governor would also like to have the following information on the above stated resolution at the earliest. 1. Date of  receipt  of  the notice  of  the resolution in the Legislative

Assembly. 2. Action taken by the Legislative Assembly on the notice. 3. Highlight of the precedents, if any. Kindly  ensure  that  replies  of  above  points  are  sent  latest  by  8th December, 2015.

Yours faithfully, signed (illegible)

07.12.2015 (Minik Damin)

Deputy Secretary to Governor”

The  aforesaid  communication,  according  to  learned  counsel  for  the

appellants, was responded to by the Secretary of the Legislative Assembly

on the following day, i.e., 8.12.2015.  The response is extracted below:

“To, The Secretary to Governor, Governor’s Secretariat, Raj Bhawan, Itanagar.

Sub: Notice of Resolution of Removal of Hon’ble Deputy Speaker. Sir,

With  reference  to  your  letter  No.  GS/1-115/00  (Vol-II)  6742 dated 7th December, 2015 on the above mentioned subject, I am to

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furnish the following information required by you for kind perusal of His Excellency, the Governor. 1. Date of Receipt of the Notice

of  the  Resolution  of  the Legislative Assembly.

: 16  th   November, 2015.

2. Action  Taken  by  the Legislative  Assembly  on Notice

: File  processed  and under consideration of Hon’ble Speaker.

3. Highlight of the precedent. : Nill

  Yours faithfully,               signed

    8/XII/15                (M.LASA)               Secretary,        Arunachal Pradesh       Legislative Assembly,             Naharlagun.

Signed (illegible) 8/12/15”

64. Learned counsel for the appellants emphatically pointed out, that the

reply of the Secretary of the Legislative Assembly, was expressly to the letter

bearing reference number GS/1-115/00(Vol-II)/6742.  The said reference

number  was  recorded  in  the  letter,  addressed  by  the  Deputy  Secretary

attached  to  the  Governor.  Additionally,  it  was  pointed  out,  that  the

Secretary to the Governor was pointedly informed, that the notice of the

resolution  of  the  Legislative  Assembly  for  the  removal  of  the  Deputy

Speaker,  was  received  in  the  office  of  the  Secretary  of  the  Legislative

Assembly on 16.11.2015.  And it was noted in the reply, that the file was

processed, and was under consideration of the Speaker.  It was therefore

asserted  on  behalf  of  the  appellants,  that  the  Governor  had  complete

information about the initiation of the notice of resolution for the removal of

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the Deputy Speaker under Article 179, and yet, the Governor continued to

feign ignorance about the same.

65. In order to controvert the factual position brought to our notice on

behalf of the appellants, learned senior counsel for the respondents, placed

reliance on a note of Tage Habung – Superintendent of Police-cum-ADC to

Governor, and the endorsement recorded thereon, which is extracted below:

                                “N O T E                    Today dated 8  th   Dec’2015, I had gone to L/Assembly secretariat,

Naharlagun and meet the Secretary, Addll. Secretary, OSD to speaker, under secretary and section officer.  I have apprised them about the letter issued from Governor’s Secretariat to Secretary A.P. Legislative Assembly, Naharlagun regarding the notice of resolution for removal of speaker and deputy speaker.  It is learned that the said file is at the official residence of Hon’ble Speaker at Itanagar.

Further  it  is  learned  that  Hon’ble  speaker  is  on  tour  in  his home constituency.  He is likely to return late night today.

For information please. signed (illegible)

(Tage Habung) SP ADC to Governor

Dy. Secretary to Governor

H.E. may like to Peruse Please.   Signed

8.12.15 D.S.

Illegible  signed 08.12.15”

Based on the note/endorsement extracted above,  it  was submitted,  that

even  though  the  Deputy  Secretary  to  the  Governor,  through  his

communication dated 7.12.2015, had sought “A copy of ...” the notice of

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resolution  for  the  removal  of  the  Deputy  Speaker  –  Tenzing  Norbu

Thongdok, the same was not furnished to the Governor. Further more, it

was  pointed  out  from  the  note/endorsement  dated  8.12.2015  (of  the

Superintendent of Police-cum-ADC to the Governor), that even on his visit

to the office of the Speaker, when he had met the Secretary, the Additional

Secretary  and  the  Officer-on-Special  Duty  to  the  Speaker,  he  was  not

furnished with  a copy of  the notice  of  resolution  for  the  removal  of  the

Deputy  Speaker.   Rather  he  was  informed,  that  the  same  was  in  the

personal  custody  of  the  Speaker,  who  was  on  tour  in  his  home

constituency.  Learned counsel for the respondents wishes us to draw a

very important inference, from their instant assertion.  That, the factum of

the  custody  of  the  notice  of  resolution  for  the  removal  of  the  Deputy

Speaker, was allegedly in the custody of the Speaker of the House, and that,

the Speaker never ever produced the original thereof.  And the Speaker, who

is one of the appellants before this Court, did not produce the same, even

when it was called for by the Court. And secondly, despite repeated efforts

made by the Governor, to obtain a copy of the notice of resolution for the

removal of the Deputy Speaker – Tenzing Norbu Thongdok, no such copy

was ever furnished to him, by the office of the Secretary of the Legislative

Assembly.

66. More important than the factual inferences drawn in the foregoing

paragraph,  was the assertion at  the hands of  the respondents,  that the

letter addressed by the Secretary of Legislative Assembly dated 8.12.2015,

to the Secretary to the Governor extracted hereinabove, was a forged and

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fabricated document.   The accusation was aimed at the appellants,  who

alone could be beneficiaries of the above resolution.  To demonstrate, that

the communication dated 8.12.2015 was a forged and fabricated document,

the Court’s attention was drawn towards a similar intimation, about the

notice of resolution for the removal of the Speaker, on the very same day –

8.12.2015.  The  above  communication,  bearing  endorsement  number

LA/Leg.26/2015, is extracted hereunder:-

“Dated Naharlagun, the 8th Dec, 2015. To,

The Secretary to Governor, Governor Secretariat, Raj Bhawan Itanagar, Arunachal Pradesh.

Sub:-Notice of Resolution for Removal of Hon’ble Speaker. Sir,

With  reference  to  your  Letter  No.GS/1-115/00  (Vol.II)  6743, Dated 07/12/2015, on the above mentioned subject, I am to furnish the  following  information  required  by  you  for  kind  perusal  of  His Excellency the Governor.

1. Date of receipt of the notice of the  resolution  of  the Legislative Assembly.

19/11/2015

2. Action taken by the Legislative Assembly on the notice

File  processed  and under  consideration  of Hon’ble Speaker

3. Highlight of the precedents, if any.

Nil.

     Yours faithfully,            signed       (M. Lasa)       Secretary,

  Arunachal Pradesh, Legislative Assembly        Naharlagun.”

It was the submission of learned senior counsel for the respondents, that

the letter-head on which the two communications were addressed by the

Secretary of the Legislative Assembly on 8.12.2015, depicting details of the 76

Page 77

resolutions for the removal of the Speaker and the Deputy Speaker, even

though addressed on the same day, were different.   Having perused the

same, we hereby affirm the assertion.  It was also pointed out, that the seal

of the receipt affixed by the Governor’s Secretariat, on the two letters were

markedly different, inasmuch as, the seal of the Governor’s Secretariat on

the  letter  bearing  no.LA/LEG-24/2015  (pertaining  to  the  notice  of

resolution for the removal of the Deputy Speaker) was of long and almost

twice  the  size  of  the  seal  on  the  letter  bearing  no.  LA/LEG-26/2015

(pertaining to the notice of resolution for the removal of the Speaker), which

was  circular.   The  former  letter  merely  recorded  in  writing  the  date

8.12.2015 on the receipt, whereas the latter bears a printed receipt number,

as also, a printed date of  receipt,  which we were informed, is the usual

practice adopted in the Secretariat of the Governor.   

67. To contest the above accusation, it was submitted on behalf of the

appellants, that no receipt number was depicted even in the former letter

bearing  no.  LA/LEG-24/2015,  dated  8.12.2015,  which  the  respondents

acknowledge as genuine.  The respondents therefore placed reliance on a

third communication,  which was also addressed by the Secretary of  the

Legislative Assembly, to the Commissioner to the Governor, on the subject

of  preponement  of  the  6th  Legislative  Assembly.   The  instant

communication,  bearing  endorsement  number  LA/LEG-23/2015,  is

extracted below:     

“To, The Commissioner, to the Governor, Arunachal Pradesh,

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Itanagar. Sub: Preponing of Sixth Legislative Assembly. Sir,

Please  refer  Deputy  Secretary’s  letter  NO.GS/1-11/00  (Vol.  - II/6778 dated 10.12.2015 forwarding (i)  Order modifying summons dated 3rd November, 2015 under 174(1) of the Constitution of India; and (ii) Message under article 175 (2) of the Constitution of India.

This office had issued summons for the Sixth Session of Sixth Legislative  Assembly  conveying  the  order  dated  03.11.2015  of  His Excellency.   Accordingly,  this  office  has  swung  in  to  action  and initiated  all  necessary steps for  conducting the Session with  effect from  14th January,  2015.   In  the  meantime  we  have  received  a communication referred above from the Deputy Secretary, Governor’s Secretariat preponing the assembly session and fixing the agenda for the Session.

I  am to state that as per normal practice and procedure the notice  for  summoning  of  the  Assembly  Session  should  reach  the Legislative  Assembly  Secretariat  through  the  Department  of Parliamentary Affairs Department of the State Govt.  Secondly, under article  174 there is  no provision to prepone or postpone Assembly Session without  consulting  the Govt./Speaker.   Article  175 clearly relates that His Excellency can address and send messages to when the House in Session.

It may be mentioned here that as per rules and procedure of Arunachal  Pradesh Legislative  Assembly  agenda for  any session is finalized  by  the  Business  Advisory  Committee  as  per  order  of precedence in the Rules.

However,  Legislative  Assembly  Secretariat  has  obtained  legal opinion and advice from the Learned Advocate General of Arunachal Pradesh which is enclose herewith for your perusal and guidance.

Recd at  3 pm. Please  put up on file expeditiously. – US (NN) to  receive a copy             signed             14/12

US (NN) D.S.  

State Cabinet in its meeting held today at 1000 hrs has also conveyed its resolution which is reproduced below for your perusal “We have also received the opinion of the Ld. Advocate General dated 12.12.2015 on the said Order and Message.   The Cabinet has per used the said opinion and is in complete agreement with views the Ld. Advocate General. The  said  order  dated  09.12.2015  issued  by  His  Excellency  the Governor of Arunachal Pradesh is in contradiction to Article 174 read

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with Article 163 of the Constitution of India and Rule 3 of the Rules of Procedure and Conduct of Business (“Rules”).  Similarly, the message is contrary to Article 175 of the Constitution read with Rule 245 of the Rules. We, therefore advice the Hon’ble Speaker not to take any action on the said  Order  and  Message.   The  concerned  officers  are  accordingly directed to take necessary action.”

In view of above, we have no other alternative but to stick to the earlier order of His Excellency to convene the Sixth Assembly Session with effect from 14th to 18th January, 2015 excluding the holidays.  Yours faithfully,

signed (illegible)               (M. Lasa)

    Secretary,    Arunachal Pradesh, Legislative Assembly”

68. It was submitted on behalf of the respondents, that the seal on the

receipt  of  the  instant  communication  in  the  Governor’s  Secretariat,  is

identical to the receipt of the notice of resolution for the removal of the

Speaker.   This  communication,  according  to  learned  counsel  for  the

respondents, was a genuine communication, which was duly received at the

Governor’s Secretariat.  The reliance on the instant communication dated

14.12.2015, according to learned senior counsel, is of utmost significance to

determine, that fraud had been played by the appellants.  This assertion

was sought to be demonstrated, by depicting the numbers assigned to the

three  communications  of  the  office  of  the  Secretary  of  the  Legislative

Assembly, coupled with the date of issuance thereof.  We may tabulate the

position as under:

Sl. No. Letter Nos. Dated Receipt  No.  and  date thereof  at  the Governor’s Secretariat

1. LA/LEG-23/2015 14th December, 2015 Receipt No. 6246 dated 14.12.2015

2. LA/LEG-24/2015 8th December, 2015 Receipt  No.  Nil,  dated 8.12.2015

3. LA/Leg.26/2015 8th December, 2015 Receipt  No.6127 dated

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8.12.2015

The three letters to which our attention was drawn bore numbers 23, 24

and 26. The first  communication which bears no. LA/LEG-23/2015 was

dated 14.12.2015.  The said communication was addressed by M. Lasa –

Secretary of  the Legislative  Assembly,  to  Commissioner  to the Governor,

Arunachal Pradesh. It pertained to the preponement of the 6th Legislative

Assembly.   In  seriatim,  the  second  communication  bearing  no.

LA/LEG-24/2015 was dated 8.12.2015. The said communication was also

addressed  by  M.  Lasa  –  Secretary  of  the  Legislative  Assembly,  to  the

Secretary to the Governor.  The above noted communications pertained to

the notice of resolution for the removal of the Deputy Speaker. Sequentially,

the  third  communication  bearing  no.  LA/LEG-26/2015  was  also  dated

8.12.2015.  The said communication was addressed by M. Lasa – Secretary

of the Legislative Assembly, to Secretary to the Governor.  The above noted

communications pertained to the notice of resolution for the removal of the

Speaker.  It was pointed out, that the above two letters were issued on the

same letter-head(s), and their receipts were recorded under the seal of the

Governor’s Secretariat, bearing not only the number of the receipt(s), but

also the date(s) of the receipt. Whereas, the communication pertaining to

the notice of resolution for the removal of the Deputy Speaker, was not only

on a different letter-head, but was also with a different seal, and bore no

receipt number.  But most importantly, sequentially, the first letter referred

to  above,  was dated 14.12.2015,  whereas  the  next  two  communications

with the succeeding reference numbers bore the date 8.12.2015.  It was

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pointed  out,  that  the  letter  bearing  no.  LA/LEG-23/2015  having  been

issued on 14.12.2015, the other two letters bearing nos. LA/LEG-24/2015

and LA/LEG-26/2015 could not bear a date preceding 14.12.2015.   

69. We were of the view, that the factual position needed to be verified, as

the inference suggested was logical.  We therefore, required the officer, who

was in custody of the despatch register of the office of the Secretary of the

Legislative Assembly, to produce the same for our perusal.  Having perused

the  original  record,  and  having  heard  the  explanation  tendered  by  the

officer,  all  of  us were  individually  satisfied,  that  the  numbers  jumble

suggested on behalf of the respondents, was not sufficient to lead to the

suggested inference.  All that can be stated in conclusion however is, that

the  material  produced  by  the  rival  parties  for  our  consideration,  with

reference to the alleged resolution moved on 16.11.2015 by 16 members of

the House belonging to the INC, for the removal of the Deputy Speaker –

Tenzing Norbu Thongdok, is not sufficient to render a clear determination

on the matter, one way or the other.

The fourth sequence of facts:

70. Mr. Rakesh Dwivedi, learned senior counsel entered appearance on

behalf of respondent nos. 2 to 15, and also, on behalf of respondent nos. 31

to 37. Respondent nos. 2 to 15 are the 14 MLAs belonging to the INC, who

were disqualified by the Speaker on 15.12.2015. Respondent nos. 31 to 37,

are 7 more MLAs also belonging to the INC.  The first set of 14 MLAs and

the second set of 7 MLAs referred to above, constitute the group of 21 MLAs

who  had  originally  been  elected  on  the  INC  ticket,  and  comprise  the

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breakaway  group  of  dissidents,  who  desired  a  change  in  the  political

leadership  in  the  Assembly.   They  had  demanded  the  removal  of  Chief

Minister  –  Nabam  Tuki.   It  would  also  be  relevant  to  mention,  that

respondent nos.31 and 37 – Wanglam Sawin and Gabriel D. Wangsu, were

stated  to  have  tendered  their  resignations,  which  were  accepted.

Thereupon, the constituencies represented by them, were declared vacant.

It  may also be noted, that respondent nos.  31 and 37 had assailed the

acceptance of their resignations before the High Court, but the challenge

raised by them, was rejected by the High Court.  We are informed, that a

Petition for Special Leave to Appeal filed by them before this Court, assailing

the above order of the High Court, has also been dismissed.

71. The submissions advanced on behalf of the respondents, require us to

record another sequence of facts.  It was submitted by learned counsel, that

the  5th  session  of  the  Assembly  was  concluded  on  21.10.2015.   The

Governor issued an order on 3.11.2015 summoning the 6th session, and

scheduled its commencement for 14.1.2016.  In the interregnum 13 MLAs –

11 belonging to the BJP and 2 Independent MLAs, issued a notice (-dated

19.11.2015) of resolution for the removal of the Speaker – Nabam Rebia.

The above factual position was confirmed by the Secretary of the Legislative

Assembly – M. Lasa, to Secretary to the Governor on 8.12.2015. Having

issued the above notice, the concerned 13 MLAs addressed a letter to the

Governor  (dated,  19.11.2015)  for  the  preponement  of  the

meeting/proceeding  of  the  House.   The aforesaid  communication,  which

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was received in the office  of  the Governor on 20.11.2015, is reproduced

below:

“REQUEST TO GOVERNOR FOR PREPONING THE NEXT SESSION OF APLA TO CONSIDER AND VOTE ON THE RESOLUTION FOR

REMOVAL OF THE SPEAKER Naharlagun 19-11-2015

Honourable Governor Saheb We,  the  undersigned  members  of  the  Arunachal  Pradesh

Legislative  Assembly,  13  in  number,  wish  to  table  a  notice  of resolution for removal of Shri Nabam Rebia from the Office of Speaker in exercise of our powers under article 179 read with article 181 of the Constitution of India further read with Rules 151 to 154 of the Rules of Procedure of the House.

The notice of Resolution for removal of the Speaker, signed by all  of  us  and  addressed  to  the  Secretary,  Arunachal  Pradesh Legislative  Assembly  and  endorsed  to  the  Speaker  and  Deputy Speaker of the Assembly is enclosed.

As  this  Resolution  is  not  a  resolution  under  the  Rules  of Procedure of the House, but a resolution under article 179 read with article 181 of the Constitution of India, the said Resolution, as soon as it is given notice of, requires to be disposed of by the Legislative Assembly  immediately  after  the  completion  of  the  mandatory  time period of 14 days prescribed in the Constitution.

You are  aware,  sir,  that  generally  sessions of  the  House are convened on the recommendation of the Government of the day, so that matters related to governance are considered by the House.  The matter  relating  to  removal  of  the  incumbent  from  the  Office  of Speaker is not a matter of governance but limited to the confines of Legislature  with  which  Government  of  the  day  is  not  concerned. Since a Speaker enjoys and sustains his office with the support of the ruling party which now, in the present case, stands reduced to only 25, even extraordinarily also, no Government recommendations would be forthcoming for a session to consider the resolution for removal which we tabled.

You have however called the next session on the 6  th   Arunachal Pradesh Legislative Assembly to meet on 14  th   January, 2016 but this Resolution for removal for which notice once given, cannot wait for nearly two months time.  Since the Constitutional imperative has to be complied with, a session at the earliest becomes indispensable.

We therefore beseech you sir that you may be pleased to rescind the summons issued for the House to meet on 14  th   January, 2016 and re-issue the summons for the House to meet at an emergent date so that the Resolution aforesaid is considered and disposed at the earliest  in  accordance  with  the  scheme,  purpose  and  timeframe envisaged by the Constitution makers.  Any delay in this behalf would

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gravely and irreversibly affect the ends of justice as guaranteed in the said Constitutional provisions and Rules.

You are also aware how recent reports in the newspapers about the alleged moral turpitude of the incumbent in the office of Speaker as evidenced by the criminal complaint of a women against him, that has brought down the esteem of the office of the Speaker.  The dignity of  the  Speaker's  office  needs  thus  to  be  restored  with  the  utmost dispatch through your hands of calling a session at the earliest in lieu of the session that has been summoned to meet on 14.1.2016.

You also have the power to modify your summons by merely preponing the date of the meet from 14 January 2016 to any date immediately after completion of the 14 days period.  As all notices given  after  issue  of  summons  are  valid,  you  may  be  pleased  to prepone the session to a date immediately after 14 days of the date of notice of our resolution for removal of the Speaker.

We pray your honour accordingly with the hope that you would save democracy from peril at the hands of the Speaker.

sd/- (TAMIYO TAGA)

LEADER OF OPPOSITION (JAPU DERU)

MLA”

A perusal of the aforesaid communication reveals, that the concerned 13

MLAs had sought the removal of the Speaker – Nabam Rebia under Articles

179  and  181.   It  was  also  pointed  out,  that  in  consonance  with  the

procedure of the House, such a resolution was required to be considered

and  disposed  of,  by  the  Assembly  immediately  after  the  minimum

mandatory period of 14 days.  It was also urged, that the ruling political

party  –  the  INC,  was  no  longer  enjoying  majority  in  the  House,  as  its

strength stood reduced to only 25 out of a total of 60 members.  It was in

this background, that a prayer was made by the concerned 13 legislators to

the Governor, to cancel the summoning of the 6th session of the Assembly

for  14.1.2016, and to re-summon the House at  the earliest,  so that the

resolution could be settled without any delay.  It was submitted, that the 13

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MLAs had advised the Governor, that he had the power to modify the earlier

summons, and prepone the date of summoning of the Assembly.

72. It is also relevant to mention, that on 27.11.2015 the Commissioner

to the Governor, addressed a letter to the Secretary of the State Legislative

Assembly, that the Governor was in receipt of a resolution signed by 13

members of the House, seeking the removal of the Speaker of the Assembly.

On  behalf  of  the  Governor,  the  Commissioner  sought  the  following

information through the aforesaid communication:

“1. Date of receipt of the notice of the resolution in the Legislative  Assembly. 2. Action being taken by the Legislative Assembly on the notice. 3. Highlights of precedents, if any. Kindly ensure that replies to above points are sent at the earliest.”

73. Even  though  the  aforesaid  information  was  sought  expeditiously,

when no  such  information  was  furnished  by  the  Secretary  of  the  State

Legislative  Assembly,  the  Deputy  Secretary  to  the  Governor,  addressed

another letter dated 3.12.2015 to the above Secretary, seeking the same

information  again.   The  aforesaid  communication  also  remained

unanswered.   Whereupon,  a  third  communication  dated  7.12.2015  was

addressed  to  the  Secretary  of  the  Legislative  Assembly  for  the  same

purpose.  An extract of the letter dated 7.12.2015 is reproduced hereunder:

“To, The Secretary, Arunachal Pradesh Legislative Assembly, Arunachal Pradesh, Naharlagun.

Sub: Notice of Resolution for removal of Speaker. Sir,

I  am  directed  to  refer  to  our  letter  of  even  number  dated 27.11.2015 and 03.12.2015 on the above subject wherein you have

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been requested to furnish the following information to this office for kind perusal of His Excellency the Governor. 1.  Date of  receipt  of  the notice  of  the resolution in the Legislative Assembly. 2. Action taken by the Legislative Assembly on the notice. 3. Highlight of the precedents, if any. Required information have not been received from your end till date. Kindly  ensure  that  replies  of  above  points  are  sent  latest  by  8th December, 2015.”

74. In  the  sequence  of  events,  noticed  above,  it  is  also  pertinent  to

mention, that the Chief Whip of the INC – Rajesh Tacho, filed a petition on

7.12.2015 seeking disqualification of 14 members of the House (respondent

nos.  2  to  15),  belonging  to  the  INC,  under  Article  191(2)  read  with

paragraphs 2(1)(a), 6(1) and (2) of the Tenth Schedule, read with Rules 3(7)

and  6  of  the  Members  of  the  Arunachal  Pradesh  Legislative  Assembly

(Disqualification on Ground of Defection) Rules, 1987.

75. It was also pointed out, that the Secretary of the Legislative Assembly,

through a communication dated 8.12.2015, informed the Governor that a

notice of resolution for the removal of the Speaker – Nabam Rebia, had been

received in his office on 19.11.2015.    It was the case of the respondents,

that  on  confirmation  of  the  fact  that  13  MLAs  had  issued  a  notice  of

resolution  for  the  removal  of  the  Speaker  on  19.11.2015,  the  Governor

sought legal opinion, with reference to the proceedings of disqualification

initiated by the Chief  Whip of the INC, and also, about the validity  and

legitimacy of the Speaker sitting in judgment over the adjudication of the

disqualification  proceedings  under  the  Tenth  Schedule,  during  the

pendency of the notice of resolution for his own removal.  Based on the

advice tendered to him, the Governor entertained an impression, that there

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was an attempt to subvert the provisions of the Constitution.  The Governor

therefore, it was urged, exercised his power under Article 174(1) suo motu,

without any aid and advice, and rescheduled the 6th session of the House

by preponing it from 14.1.2016 to 16.12.2015.

The first installment of legal submissions, on behalf of the respondents:

76. Based on the factual premise recorded above, it was the contention of

Mr. Vikas Singh, and also, Mr. Shekhar Naphade, learned Senior Advocates,

that the actions of high constitutional functionaries referred to above, were

a clear testimony of the fact, that the democratic process in the State of

Arunachal  Pradesh,  was  being  subverted  and undermined.   As  such,  it

became the constitutional  obligation of  the Governor,  to ensure that the

constitutional functioning was restored, as would re-establish the purity of

the  democratic  process.   Additionally,  it  was  the  submission  of  learned

counsel, that the action taken in this case, was akin to the one where the

Governor  requires  the  ruling  party  (or  combination)  to  demonstrate  its

majority/strength,  on the  floor  of  the House.   The instant  action of  the

Governor, according to learned counsel, originated from the same logic and

rationale,  and  therefore,  could  not  have  been  dealt  with  differently.

Accordingly it  was urged, that this Court should not find fault  with the

legality or constitutionality of the action of the Governor, and also, with the

Governor’s  bona fides, in having issued the order, and the message dated

9.12.2015.  

77. It was the contention of Mr. Rakesh Dwivedi, learned Senior Advocate,

that the House could have been summoned for any day after 3.12.2015.

This because, the minimum notice period of 14 days mandated through the 87

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first  proviso  under  Article  179,  expired  on  3.12.2015.   And  yet,  the

Governor did not feel the urgency of summoning the House by preponing

the meeting of the House.  It was submitted, that the sense of urgency and

compulsion, for convening the House assumed a different complexion when

the  Chief  Whip  of  the  INC  –  Rajesh  Tacho,  filed  a  petition  for  the

disqualification of respondent nos. 2 to 15, on 7.12.2015.  It was therefore,

and  in  the  above  background,  the  urgency  of  the  cause  assumed

significance.  In conjunction with the above, the fact that the office of the

Secretary of the Legislative Assembly confirmed on 8.12.2015, that he was

in receipt of the notice of resolution for the removal of the Speaker – Nabam

Rebia,  dated  19.11.2015,  revealed  that  a  political  dimension  was  being

created,  which  was  clearly  undemocratic.   The  Governor,  according  to

learned counsel,  was well  within his rights, in the above background, to

take  such  action  as  he  in  his  discretion  considered  appropriate,  to

re-establish  the  purity  of  the  democratic  process.   By  the  order  dated

9.12.2015, the Governor preponed the meeting of the 6th session of  the

Assembly originally scheduled for 14.1.2016, to 16.12.2015.  For taking his

order to its logical conclusion, according to learned counsel, the Governor

through  his  message  dated  9.12.2015,  regulated  the  procedure  of  the

House, as would not subvert or undermine the democratic process.

The fifth sequence of facts:

78. It was urged on behalf of the respondents, that the challenge raised

by the appellants, to the order of the Governor dated 9.12.2015 (preponing

the summoning of the House from 14.1.2016 to 16.12.2015), and to other

connected issues, before the High Court by filing Writ Petition nos. 7745 of 88

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2015 and 7998 of 2015 (on 17.12.2015 and 22.12.2015, respectively), was

not only unfair and unreasonable, but was also illegitimate, and constituted

a misuse of the jurisdiction of the High Court.  It was the contention of

learned senior counsel, that the office of the Governor received a letter dated

14.12.2015, from the Speaker of the Assembly – Nabam Rebia, recording his

objection  to  the  order  of  the  Governor  dated  9.12.2015  preponing  the

summoning of the House from 14.1.2016 to 16.12.2015.  In his above letter

dated 14.12.2015, the Speaker also contested the validity of the message of

the Governor dated 9.12.2015 (providing the manner in which, proceedings

of the 6th session of the Assembly should be conducted).   

79. On the same day, i.e., 14.12.2015, the Commissioner to the Governor

received a letter  from the Officer  on Special  Duty to  the Chief  Minister,

seeking a meeting of the Chief Minister and his Council of Ministers, and

some other MLAs, with the Governor.  The said letter was received by the

Commissioner  at  10.15  p.m.  on  14.12.2015,  and  was  endorsed  to  the

SSP/ADC to the Governor, on 15.12.2015 at 7.45 a.m.  It was also pointed

out,  that the aforesaid communication was brought  to  the notice  of  the

Governor at 10 a.m. on 15.12.2015.  Having accepted the aforesaid request,

the Governor granted audience to the Council  of  Ministers at 6 p.m. on

15.12.2015 itself.  It was submitted, that 9 Ministers including the Chief

Minister  came  to  meet  the  Governor  at  6.15  p.m.  on  15.12.2015,  and

committed  acts  of  serious misbehaviour.   Insofar  as  the  details  of  their

alleged  misdemeanour  are  concerned,  the  same  were  disclosed  by  the

Governor, to the High Court in IA No.29 of 2016, in the following words:

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“….. that at around 6:15 P.M. 9 (nine) ministers including the Chief Minister Shri Nabam Tuki came to meet the Governor and the Chief Minister initiated the discussion, all of a sudden few ministers more particularly the Education Minister Shri. Tapang Taloh and Transport Minister  without  any  provocation  started  abusing  the  Governor forcing  his  security  personnel  to  interfere.   There  was  infact  an attempt to assault the Governor to force him to withdraw his order. The Commissioner to the Governor duly informed the incident to the Director General of Police which was videographed.”

It  was  also  submitted,  that  a  meeting  of  the  Cabinet  was  held  on

14.12.2015,  with  reference to  the  preponement of  the  Assembly  Session

from 14.1.2016 to 16.12.2015, whereupon the Cabinet passed the following

resolution:

“  MINUTES  OF  THE  MEETING  OF  THE  CABINET  HELD  ON  14  TH DECEMBER, 2015 AT 1000 HRS IN THE CONFERENCE HALL OF THE HON’BLE  CHIEF  MINISTER’S  RESIDENTIAL  OFFICE,  ARUNACHAL PRADESH, ITANAGAR MEMBERS OF THE COUNCIL OF MINISTERS PRESENT:- 1. Shri Nabam Tuki, Chief Minister (In Chair) 2. Shri Tanga Byaling, Minister (Home, etc.) 3. Shri Tapang Taloh, Minister (Education, etc.) 4. Shri Gojen Gadi, Minister (PWD, etc.) 5. Shri Takam Pario, Minister (PHED&WS, etc.) 6. Shri Rajesh Tacho, Minister (Health & PW, etc.) 7. Shri Phurpa Tsering, Minister (AH&V, etc.) 8. Shri Jomde Kena, Minister (Transport, etc.) 9. Shri Tirong Aboh, Minister (DoTCL, etc.) IN ATTENDANCE 1. Shri Ramesh Negi, Chief Secretary and Cabinet Secretary 2. Shri Tajom Taloh, Commissioner & Jt. Secretary to the Cabinet 3. Shri Onit Panyang, Secretary (Law & Parliamentary Affairs)

The Cabinet Secretary welcomed the Hon’ble Chief Minister and his Council of Ministers. AGENDA ITEM NO.1.  DISCUSSION ON THE MESSAGE DATED 9TH DECEMBER, 2015 OF THE GOVERNOR OF ARUNACHAL PRADESH FOR  PRE-PONEMENT  OF  THE  ASSEMBLY  SESSION  FROM  14TH JANUARY 2016 TO 16TH DECEMBER, 2015.

The Cabinet has discussed the opinion rendered by the Learned Advocate  General  dated 12.12.2015  on  the  constitutionality  of  the order and message of HE, the Governor.  After careful examination, the Cabinet has resolved as under:

The State Cabinet at its meeting held on 14  th   December, 2015 at 1000 hrs in CM’s conference hall again discussed in detail the Order

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and the Message dated 09.12.2015 of His Excellency the Governor of Arunahal Pradesh.

Cabinet has received the opinion of the Ld. Advocate General dated  12.12.2015  and  other  legal  experts  on  the  said  Order  and Message.  The Cabinet has perused the said opinion and is in complete agreement with views of the Ld. Advocate General.

The said Order dated 09.12.2015 issued by His Excellency the Governor of Arunachal Pradesh is in contradiction to Article 174 read with Article 163 of the Constitution of India and Rules 3 and 3A of the Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly.  Similarly, the Message is contrary to Article 175 of the Constitution read with Rule 245 of the said Rules.  Moreover, the Hon’ble  High Court  of  Gauhati  has fixed the hearing of  the case of resignation of 2 MLAs from the Assembly on 16  th   December, 2015.

Therefore, the Cabinet resolves …, His Excellency, the Governor of Arunachal Pradesh to recall and cancel the Order and the Message dated 9  th   December, 2015 and allow the Session to be convened on 14  th January, 2016 as already ordered and scheduled.

The  Cabinet  also  resolves  to  endorse  a  copy  each  of  this resolution and legal advice of the Ld. Advocate General to the Hon’ble Speaker.

... Secretary (Cabinet)”

80. It was reiterated during the course of hearing, that the meeting of the

Governor with the Chief  Minister  and Ministers on 15.12.2015 was duly

video-graphed.  It was urged, that the entire episode as it had occurred, can

be shown to this Court.  The fact that an attempt was made by the Chief

Minister – Nabam Tuki and his Ministers, to assault the Governor, in order

to  force  him  to  withdraw  the  order/message  dated  9.12.2015,  it  was

submitted, was duly brought to the notice of the Director General of Police,

by the Commissioner to the Governor.

81. Insofar as the request which the Chief Minister and some Ministers

had made, in their letter dated 14.12.2015 is concerned, it was submitted,

that the same was an absolute eyewash, because members of the INC still

supporting the Chief Minister, had already taken a decision not to allow the

House to meet, as required by the Governor’s order dated 9.12.2015.  In

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order to substantiate this assertion, learned counsel placed reliance on a

letter dated 14.12.2015 addressed by the then Speaker – Nabam Rebia, to

the Minister (Home) – Tanga Byaling.  The aforesaid letter, which has been

extracted in the impugned order passed by the High Court, is reproduced

below:

“Arunachal Pradesh Legislative Assembly Speaker’s Cell MOST URGENT

As the Govt. is aware of the fact that a serious law and order problem is likely to take place on 16th of December, 2015, in view of the  unconstitutional  and  unprecedented  summoning  of  the  Sixth Session of  Sixty  Legislative  assembly of  Arunachal  Pradesh by the Governor of Arunachal Pradesh.  It is given to learn that thousand of anti-social elements are taking shelter in the state Capital with the motive  to  create  law  and  order  problem  on  that  particular  date. Illegal arms and ammunition are also reported to have been collected for the purpose.  Sources have revealed that the main target of the anti—social elements would be to burn down the legislative building of the state Assembly at Naharlagun.

I would therefore request the Hon’ble Minister (Home) Govt. of Arunachal Pradesh to provide full-proof security in and around the Assembly  building  w.e.f.  15  th   –  18  th   December,  2015  on  top-most priority basis.  It is also requested that no individual including the Hon’ble  Legislators  be  allowed  to  enter  the  Assembly  building premises on 15  th  , 16  th  , 17  th   and 18  th   Dec’ 15. Please treat this as most urgent. Urgent Sd/- Illegible 14.12.15 SP/City (NABAM REBIA) Deploy sufficient force      Speaker with monitoring system with the administration  of IRBN + CPMF”

A perusal of the aforesaid communication reveals, that the Speaker asked

the Home Minister to provide foolproof security and to protect the building

of the State Legislative  Assembly.   And that,  no one, not even MLAs be

permitted  to  enter  the  building  from  15.12.2015  to  18.12.2015.

Accordingly,  the  Superintendent  of  Police  (City),  Itanagar,  in  compliance

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with  the  directions  issued  by  the  Director  General  of  Police,  sufficient

number of IRBN personnel were deployed, to secure the Assembly building

premises from 15.12.2015 to 18.12.2015, so that no individual including

legislators,  could enter  the same.   It  was pointed out,  that the Speaker

himself  (whose continuation in the State Legislative  Assembly was to be

voted upon, on 16.12.2015), being aware of his position, was making all out

efforts, to circumvent the holding of the said meeting.   

82. In addition to the letter  of the Speaker, referred to above, the Speaker

also addressed a letter  on the same day – 14.12.2015, to the Governor,

wherein he contested the decision of the Governor, to summon the House

by preponing the summoning date from 14.1.2016 to 16.12.2015.  In the

above  letter  of  the  Speaker  –  Nabam Rebia  it  was  highlighted,  that  the

provisions of the Constitution, did not authorize the Governor, to exercise

his powers at his own free will.  It was asserted, that all the powers of the

Governor  were  to  be  exercised  on  the  aid  and  advice  of  the  Council  of

Ministers.   For this, the Speaker had invited the Governor’s attention to

Article 163(1).  It was also pointed out, that there was no provision either

under  the  Constitution  or  the  ‘Conduct  of  Business  Rules’,  which

empowered the Governor to summon a meeting of the House, by preponing

the  date  already  fixed,  in  consultation  with  the  Chief  Minister  and  his

Council of Ministers.  In this behalf, reliance was placed on Rule 3 of the

‘Conduct  of  Business  Rules’.   It  was  pointed  out,  that  the  ‘Conduct  of

Business Rules’ had been framed under Article 208, and were binding, not

only on the MLAs, but also on the Governor.  The Governor was accordingly

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urged by the  Speaker,  not  to  press  for  the  implementation of  the  order

passed by him summoning the House for 16.12.2015, “in the interest of

upholding the high moral principles enshrined in the Constitution”.  It was

also  pointed  out,  that  while  preponing  the  session  of  the  House,  the

secretariat of the Legislative Assembly had not been afforded sufficient time,

to make necessary arrangements, for holding the preponed session.  With

respect to the order/message issued by the Governor, it was asserted, that

the same was unconstitutional, and that, it impinged upon the functions of

the  “Business  Advisory  Committee”,  constituted  under  Rule  244  of  the

‘Conduct of Business Rules’.  It was urged, that the Governor’s attention

was invited to the fact, that it was the function of the “Business Advisory

Committee” alone, to schedule the business of the House, and that, it was

not within the realm of the Governor to require, the notice of resolution for

the removal of the Speaker, to be taken up as the first item, on the agenda

for the day.  The Speaker – Nabam Rebia also invited the attention of the

Governor to the resolution of  the State Cabinet,  in  the meeting held on

14.12.2015. It was submitted, that for all the above reasons, the Governor

was  requested  to  refrain  from  interfering  with  the  functioning  of  the

Legislative  Assembly.  Based  on  the  above  communications,  it  was

submitted,  that  the  Speaker  was  bent  upon  frustrating,  any  final

consideration on the notice of resolution for his removal.

A further instalment of legal submissions, on behalf of the respondents:

83. It was submitted by Mr. Rakesh Dwivedi, learned senior counsel, that

the appellants were fully justified in their reference to Article  154 which

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deals with the “executive power” of the State, and which also explicates,

that the same is vested with the Governor.  He also acknowledged, that the

above “executive power” can be exercised by the Governor, in the manner

expressed in Article 163 – on the aid and advice of the Council of Ministers

with the Chief Minister as the head.  It was however submitted, that the

exercise of functions by the Governor at his own discretion, is recognized in

Article 163(2) itself, which contemplates constitutional decision making “in

his discretion” without any aid and advice.   

84. It was urged, that insofar as the present controversy is concerned, a

correct  understanding  of  Article  163(2)  would  be  of  extreme  relevance.

Under Article 163(2), according to learned counsel, the Governor has the

authority to act on his own, in respect of matters where the Governor is

mandated to act in his own discretion “by or under” the Constitution.  It

was further submitted  that when a question arises,  as to whether such

discretion is vested with the Governor “by or under” the Constitution, the

decision of the Governor, on the above question, is final and binding.  It was

submitted,  that  Article  163(2)  postulates  three  situations  where,  as  an

exception to the general rule,  the Governor can act  at his own will  and

discretion.  Firstly, when he is required to discharge his functions by the

mandate of some provision of the Constitution itself, in his own discretion.

Secondly,  when  the  Governor  is  assigned  functions  on  the  basis  of

enactments  made  under  the  Constitution,  where  he  is  mandated  to

discharge his functions by exercising his own discretion.  And thirdly, where

he is impliedly required to act in his own discretion.

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85. It  was  pointedly  contended,  that  in  the  present  controversy,  the

question that needs to be determined is, whether Article 174 which vests

the  Governor  with  the  authority  to  summon  the  Assembly,  can  be

envisioned  as  one  of  the  provisions,  which  requires  the  Governor  to

impliedly act at his own discretion?  Learned counsel acknowledged, that

the exercise of discretion by the Governor in the present case did not fall

within the first two categorizations, postulated in his submission.  Insofar

as the implied power of the Governor with reference to the summoning of

the House (vide order dated 9.12.2015) is concerned, the first and foremost

submission  canvassed was,  that  a  clear  distinction  needed to  be  drawn

between  Article  174(1),  which  postulates  the  authority  to  summon  the

House, and Article 174(2) which vests the authority to prorogue or dissolve

the  Assembly.   In  dealing  with  the  distinction  between  the  two,  it  was

pointed  out,  that  the  process  of  summoning  a  House  can  never  be

considered  to  be  anti-democratic.   Summoning  the  House,  according  to

learned counsel, inevitably supports the cause of the democratic process.

The same, according to learned counsel, may not be true with reference to

proroguing  or  dissolving  the  House.   When  a  House  is  prorogued  or

dissolved,  the  democratic  process  is  sought  to  be  deferred  for  the  time

being, or till  the re-election of  the members of  the Legislative  Assembly,

respectively.

86. Learned senior  counsel  also pointedly  focused on Article  179,  and

more  particularly,  sub-article  (c)  thereof.   It  was  submitted,  that  an

incumbent Speaker (or Deputy Speaker) can be removed under sub-article

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(c) of Article 179, by a resolution of the Assembly passed by a majority of “…

all the then members …” of the Assembly. It was submitted, that the issue

of removal of the existing Speaker (or Deputy Speaker) contemplated under

Article 179, should not be confused with the exercise of “executive power” of

the State.   It  was asserted,  that the functions of  an Assembly could be

placed  in  two  entirely  separate  categories.   Firstly,  its  purely  legislative

activities.  Legislative  activity,  according  to  learned counsel,  included the

responsibility of the “executive power of the State” represented through the

Chief  Minister  and  his  Council  of  Ministers,  to  determine  the  field  and

nature of legislation, to be brought before the House for legislation.  It was

submitted, that in the discharge of the aforesaid activity, the Governor can

have  no  role  whatsoever.   The  realm of  legislative  activity,  according  to

learned counsel, also included the actual consideration of a Bill.   Herein

again, it was submitted, that the Governor would have no role, except to the

extent contemplated under Article 200, wherein, when a Bill is passed by

the House, the same has to be approved by the Governor. And only when

the Governor gives his assent to the Bill, the same assumes the status of a

legislative enactment.  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.  The Governor before whom a

Bill  (passed by the Legislative Assembly) is placed, has also the right to

reserve the Bill, for the consideration of the President.  This action of the

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Governor,  according  to  learned  counsel,  must  be  accepted  as  a  further

responsibility  of  the  Governor  within  the  legislative  process.   It  was

submitted, that in all the functions vested with the Governor under Article

200, are to be discharged by the Governor, in his independent discretion,

and not on any guidance or advice.  This, according to learned counsel,

illustrates  the  third  category  of  the  Governor’s  functions,  wherein  the

Governor is impliedly required to act in his own discretion, even though he

is not expressly so required, by any written mandate emerging from Article

200.   

87. Secondly, it was submitted, that there are functions and activities of

the House, which are separate and distinct from its legislative functioning.

The said activities may have no role, of the Chief Minister or his Council of

Ministers.  Illustratively, it was contended, that the issue of removal of a

Speaker (or Deputy Speaker) under Article 179(c) is an exclusive function of

the House, but is independent of its legislative business.  Insofar as the

issue of removal of the Speaker (or the Deputy Speaker) is concerned, it was

acknowledged, that neither the Chief Minister nor his Council of Ministers

has  any  determinative  role  in  the  matter.   The  Speaker  (or  the  Deputy

Speaker)  can be removed from his office, only “… by a resolution of the

Assembly passed by a majority of all the then members of the Assembly.”.

Insofar as the present controversy is concerned, it was pointed out, that the

notice of resolution for the removal of the Speaker, dated 19.11.2015, was

brought by 13 members of the House.  According to learned counsel, it is

necessary to understand, the aforesaid submission, in the background of

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the position occupied by the Speaker.  It was emphasized, that a Speaker is

a neutral arbiter, between the ruling Government (which has the majority in

the Assembly), and the opposition parties (which constitute the minority).

88. In  continuation,  learned  senior  counsel,  invited  our  attention  to

Article 180.  It was pointed out, that sub-article (1) thereof provides, that if

the office of the Speaker is vacant, the duties of “the office” of Speaker, are

to be performed by the Deputy Speaker.  And if  the office of  the Deputy

Speaker  is  also  vacant,  the  duties  of  “the  office”  of  Speaker,  are  to  be

performed by a person appointed by the Governor, out of the existing MLAs.

It  was  highlighted,  that  in  the  above  exigency,  where  the  question  of

discharging duties of the Speaker arises, the Governor has been expressly

vested with a constitutional responsibility.  Based on the above analysis, it

was submitted, that insofar as the non-legislative duties of the Assembly

are  concerned,  the  Governor  has  also  been  ascribed  some  specific

responsibilities.  And since the Chief Minister and the Council of Ministers

have no role in the aforestated action/activity, the Governor need not make

the choice of the person, to discharge the duties of Speaker, on the basis of

any aid and advice of the Chef Minister and his Council of Ministers.   

89. It was asserted, that the position prevailing after the conclusion of the

5th session of the Assembly on 21.10.2015, did occasion the applicability of

sub-article (2) of Article 180, in the peculiar facts of this case.  As such, it

was urged, that it  would be wholly  incorrect  to  assume, that the action

taken  by  the  Governor  with  reference  to  the  office  of  Speaker  was

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extraneous,  specially  when  considered  with  reference  to  the  relevant

provisions of the Constitution.   

90. Learned senior counsel seriously questioned the action of the Speaker

in locking the premises of the Assembly, and thereby, consciously stalling

the democratic process of the House.  It was asserted, that if the Speaker

was  desirous  of  enforcing  the  order  of  disqualification  (of  14  MLAs)  by

himself, under the Tenth Schedule, he may well have prevented the entry of

the said 14 disqualified members into the premises of the House. It was

submitted, that the action of the Speaker in disallowing the consideration of

the  notice  of  resolution  for  his  removal,  by  preventing  entry  of  all  the

legislators, into the building of the House, was really an action aimed at

frustrating the democratic process.  And, an escape route with reference to

the notice of resolution for his own removal.  It was pointed out, that the

Speaker  being  an  elected  member  of  the  Assembly,  discharges  vital

legislative  and  non-legislative  functions.   His  non-legislative  functions

include  the  duties  as  head  of  the  Secretariat  of  the  Assembly,  and  in

addition thereto, his quasi-judicial functions are those postulated under the

“Tenth Schedule”, of the Constitution.  The legislative functions, as well as,

the duties vested with the Speaker under the Tenth Schedule, have a direct

nexus to the democratic process, and as such, the discharge of the above

responsibilities,  while his position as a Speaker of the House was under

challenge, constituted a serious constitutional impropriety.

91. On the duties  assigned to  the Governor under  Article  174,  it  was

submitted, that it was improper and unjustified to describe the action of the

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Governor  in  summoning  the  House  vide  order  dated  9.12.2015,  as

anti-democratic. According to learned counsel, only anti-democratic forces

would contest a decision of the Governor, in summoning the House.  It was

asserted, that a Government which is confident of its majority on the floor of

the House, would have nothing to fear, when the House is summoned.  The

summoning of the House by the Governor, at his own discretion, would be

inconsequential  where  the  Government  can  establish  its  numbers.   For

exactly the same reason, it was submitted, that the action of the Governor

in summoning the House, for the consideration of a notice of resolution for

the removal of the Speaker would be inconsequential, if the Speaker enjoyed

the support of the majority of the members of the House.  It was pointed

out,  that  the  action  of  shying  away  and  stalling  consideration,  of  a

resolution  for  the  removal  of  the  Speaker,  is  an  action  which  could  be

justifiably described as anti-democratic.  It was submitted, that a party in

power which claims to enjoy the majority, cannot be aggrieved in a situation

where  the  Governor  requires  the  Government  to  establish  its  majority,

through a floor test.  Likewise, a Speaker who enjoys the confidence of the

House,  cannot  be  an  aggrieved  party,  when  the  Governor  calls  for  the

consideration of a notice of resolution for his removal.

92. Referring to  the  action of  the  Governor,  based on the order  dated

9.12.2015,  it  was  submitted,  that  even  in  the  worst  case  scenario,  the

action of the Governor could not be described, as an action in conflict with

any provision of the Constitution, or even a constitutional norm/propriety.

It  was  submitted,  that  the  notice  of  resolution  for  the  removal  of  the

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Speaker was submitted on 19.11.2015. The Governor had made repeated

efforts  in  writing,  to  confirm,  whether  such  a  notice  had  actually  been

submitted to the Secretary of the Legislative Assembly.  Initiating action for

summoning the House, by ordering its preponement, according to learned

senior  counsel,  could be an option only  if,  the concerned 13 MLAs had

actually submitted the above notice dated 19.11.2015, to the Secretary of

the  Legislative  Assembly.   Merely  because  a  copy  thereof  had  been

furnished to the Governor, he could not have initiated any action.  In spite

of the high office of the Governor, and despite repeated communications

were sent by the Governor, seeking information about the factual position,

whether a notice of resolution for the removal of the Speaker – Nabam Rebia

had  been  received,  the  same remained  unanswered.  Finally,  the  factual

position came to  the notice  of  the Governor,  only  on 8.12.2015,  on the

receipt of a communication from the Secretary of the Legislative Assembly.

By this time the postulated 14 days’ notice period, before such notice could

be taken up for consideration, had expired (on 3.12.2015).  Allowing the

Speaker  to  discharge  functions  pertaining  to  the  Secretariat  of  the

Assembly, or under the Tenth Schedule to the Constitution, while his own

position was under challenge, would not only be unconstitutional, but also

undemocratic.  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

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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.

93. Mr.  Rakesh Dwivedi,  learned senior  counsel,  having concluded his

submissions with reference to the order of the Governor dated 9.12.2015,

similarly  endeavoured  to  justify  the  message  of  the  Governor  dated

9.12.2015.   His submissions to support the message dated 9.12.2015, were

the  same  as  in  support  of  the  order  of  the  Governor  dated  9.12.2015.

According to learned counsel, the message was clear, that the Governor had

authorised the House, to permit the resolution for removal of the Speaker to

be moved.  The message required the members of the Assembly, to discuss

and put the same to vote, as “… the first item on the agenda of the House at

the first sitting of the Sixth Session…”.  The Governor also required the

Deputy Speaker, to hold the proceedings peacefully and truthfully, so as to

ensure  that  they  were  conducted  fairly.   The  message  of  the  Governor,

required the proceedings to be video-graphed.  It was submitted, that the

message of  the Governor,  would  not  only  secure the enforcement of  the

democratic process, but would also ensure transparency and fairness. It

was  therefore  the  assertion  of  learned  senior  counsel,  that  no  fault

whatsoever could be found with the message of the Governor.

94. Having submitted thus far, learned senior counsel, pointedly referred

to paragraph 5 of the message dated 9.12.2015.  It was conceded, that the

contents of paragraph 5, were instructions to the House, that until the 6th

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session  (to  commence  on  16.12.2015)  of  the  Legislative  Assembly  was

prorogued, no Presiding Officer would alter the party composition of  the

House. It  was  acknowledged,  that  this  could  only  be  understood  to

mean, that disqualification proceedings under the “Tenth Schedule”, would

have to await the outcome of the motion against the Speaker under Article

179(c).  In order to demonstrate the propriety and constitutional validity of

paragraph 5 of the message, it was submitted, that once it is concluded (-

that is, if this Court, on accepting the submissions advanced on behalf of

the respondents,  so concludes),  that  the Governor had the discretion to

summon or prepone the sitting of the Assembly under Article 174(1) read

with Articles 163 and 179(c), then it would also be up to the Governor to

decide when and/or where, the House should meet.  It was pointed out,

that the Governor is undisputedly a high constitutional functionary.  And as

such, his decisions could neither be taken lightly, nor be easily interfered

with.  By inviting the Court’s attention to Article 174, it was urged, that the

above provision vests responsibility in the Governor to summon, prorogue

or  dissolve  the  Assembly.   The  Governor  is  mandated  to  summon  the

Legislative Assembly “at such time and place as he thinks fit”.  The instant

connotation in Article 174, makes it abundantly clear, that the Governor

has to discharge the above function, as he in his own discretion, considers

appropriate.  Premised on the aforesaid foundation, it was contended, that

the instant discretion conferred on the Governor, could not be subservient

to any aid and advice.   It  was pointed out,  that the fixation of  time for

sitting  of  the  Legislative  Assembly,  determined  by  the  Governor  under

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Based on the above proposition declared by this Court, it was urged, that

the submissions advanced on behalf of the appellants do not justify  any

interference, with the impugned actions of the Governor.

97. On the issue of discretion, learned senior counsel, placed reliance on

Article  163(2).   Based  thereon,  it  was  submitted,  that  the  Governor’s

discretion, for all intents and purposes, must be deemed to be final.  It was

submitted, since Article 163(2) itself  postulates,  that “the decision of the

Governor in his discretion shall be final, and the validity of anything done

by the Governor shall not be called in question on the ground that he ought

or ought not to have acted in his discretion”, by itself absolves the Governor

from a challenge to the discretion exercised by him.  It was submitted, that

Article  163(2)  was neither  a  defunct  nor  a  redundant  provision,  and as

such, it could neither be overlooked nor ignored.  It was contended, that the

words employed in Article 163(2) must be given due weightage.  And if that

was to be done, there could be no doubt, that the discretion exercised by

the  Governor  under  Article  163(2),  would  have  to  be  considered  in  a

manner, as would protect it from the scope of any challenge.

98. With  reference to  the  Governor’s  message dated 9.12.2015,  it  was

submitted, that the same was justified under Article 175(2), whereunder,

the Governor’s message can be “with reference to a Bill then pending in the

Legislature or otherwise”.  Article 175(2) by itself makes it abundantly clear,

that messages are not limited to the Bills pending before the House.  But

could extend to and include other matters. Learned counsel clarified, that

the authority vested with the Governor under Article 200, should not to be

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confused by reference to the words “or otherwise” used in Article 175(2).

The message sent by the Governor can also relate to a Bill  under Article

200, as is  apparent on from the expression “with  respect to  a Bill  then

pending in the Legislature” used in Article 175(2).  It was submitted, that

reliance placed by the appellants on Union of India v. Valluri  Basavaiah

Chowdhary10, for asserting that the Governor could not send any message

under  Article  175(2),  with  regard  to  a  resolution  pending  before  the

Legislative Assembly, was wholly misconceived.  It was pointed out, that the

controversy dealt with in the above judgment pertained to Article 252, and

in  the  context  of  the  above  provision,  this  Court  held,  that  the  State

Legislature meant only the House of the Legislature.  Insofar as the present

controversy is concerned, it was submitted, that the same pertained to a

notice of resolution for the removal of the Speaker under Article 179(c).  It

was pointed out, that the words “or otherwise” referred to in Article 175(2)

had a wide import, and that, there was no justification whatsoever to limit

the same, so as to unnecessarily curtail the authority of the Governor, to

that which is contemplated under Article 200.  It was submitted, that if the

power of the Governor with reference to messages, was to be limited to the

responsibility  enshrined  in  him  under  Article  200,  then  the  words  “or

otherwise”  expressed  in  Article  175(2)  would  be  superfluous  and otiose.

Additionally it was contended, that Article 175(2) also mandates, that the

Legislative Assembly would deal with a message received from the Governor

“with all convenient despatch”, and would take a call thereon, as may be

“required by the message to be taken into consideration”.  It was therefore

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contended, that a message addressed by the Governor under Article 175(2),

to  the  State  Legislative  Assembly,  was  not  actually  in  the  nature  of  a

command.  And yet, the same was bound to be taken into consideration

“with  all  convenient despatch”.   In the above view of  the matter,  it  was

submitted, that the term “or otherwise” could not be ascribed a narrow or

limited meaning, but was bound to be extended the widest amplitude, in

harmony with the related provisions of the Constitution.

99. It  was  pointed  out,  that  in  the  past  also  messages  sent  by  the

Governor  were  assailed  through  judicial  proceedings.  In  this  behalf,

reference was made to K.A. Mathialagan v. P. Srinivasan11, wherein also, the

message sent by the Governor pertained to a vote of no confidence against

the  Speaker.   Reference  was  also  made  to  Pratapsing  Raojirao  Rane  v.

Governor of Goa12, wherein also, the message of the Governor pertained to a

notice of resolution for the removal of the Speaker.  It was submitted, that

the message (dated 9.12.2015) which has been assailed by the appellants in

the present case, suggested that the House should not be adjourned, till the

notice of resolution for the removal of the Speaker stood determined finally,

one  way  or  the  other.  It  was  submitted,  that  one  of  the  proposed

requirements contained in the message of the Governor was, that the notice

of resolution for the removal of the Speaker would be taken up as the first

item on the agenda.  It was pointed out, that the Governor’s message was

merely to bring to the notice of the House the procedure that the House,

was required to follow.  It was urged, that under Rule 153 of the ‘Conduct of

11 AIR 1973 (Madras) 371 12 AIR 1999 (Bom.) 53

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Business Rules’ a notice of resolution for the removal of the Speaker, had to

be included in the list of business before any other business for the day,

could be taken up.  Reference was also made to Rule 151 of the ‘Conduct of

Business Rules’, which mandates that after a notice of resolution for the

removal of a Speaker is tabled, the House would not be adjourned till the

motion of no confidence had been finally disposed of.  In the above view of

the matter, it was pointed out, that requiring the Assembly to take up the

notice of resolution for the removal of the Speaker, as the first item in the

agenda (in the message dated 9.12.2015), cannot be termed as an action at

the hands of the Governor, based on his own whims and fancies.  It was

urged, that the message needed to be viewed as an advice tendered to the

Assembly, so as to deal with an important issue, in consonance with the

provisions of the ‘Conduct of Business Rules’.   

100. Learned  senior  counsel  then  invited  the  Court’s  attention  to  the

second  direction  in  the  message  dated  9.12.2015,  whereby  the  Deputy

Speaker was obliged to preside over the House, from the first moment of the

first sitting of the House.  It was submitted, that the above noted action was

also in the nature of  an advice,  so as to make sure that the procedure

adopted before the House would not infringe Article 181(1) read with Article

182. It was pointed out, that the above provisions postulate inter alia, that

the  Speaker  would  not  preside  over  the  proceedings  of  the  Assembly,

wherein a resolution for his own removal, was to be considered.  As such, it

was submitted, that during the period when the notice of resolution for the

removal  of  the Speaker –  Nabam Rebia,  was under  consideration of  the

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House, the Deputy Speaker was liable to preside over the proceedings of the

House.  In this behalf,  while it was acknowledged, that even the Deputy

Speaker – Tenzing Norbu Thongdok, should similarly be treated as being

debarred  from  presiding  over  the  proceedings  of  the  House,  because  a

resolution for his (the Deputy Speaker’s) removal from office was pending

consideration.  It was however submitted, that the above factual position is

not  correct,  as  no  notice  of  resolution  for  the  removal  of  the  Deputy

Speaker, had actually been moved. It was submitted, that the fact that a

notice of resolution for the removal of the Deputy Speaker (alleged to have

been presented to the Secretary of the Legislative Assembly, on 16.11.2015),

was  a  complete  falsity,  as  despite  repeated reminders  addressed by  the

Governor, seeking a copy of the notice of resolution for the removal of the

Deputy Speaker, the same was not furnished to him.  It was emphasized,

that even before this  Court,  the appellants have failed to establish, that

such a notice of resolution for the removal of the Deputy Speaker – Tenzing

Norbu Thongdok, had ever been moved.  It was therefore urged, that it was

wholly  legitimate  for  the  Governor,  in  the  facts  of  the  present  case,  to

require  the  Deputy  Speaker  of  the  Assembly,  to  preside  over  the

proceedings, of the notice of  resolution for the removal of the Speaker –

Nabam Rebia.  

101. It was also the contention of learned senior counsel, that Speakers

against whom resolutions for their removal have been moved, are known to

have resorted to unsavoury means, to defer consideration thereon.  In this

behalf,  learned  counsel  placed  reliance  on  State  of  Punjab  v.  Satya  Pal

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Dang13,  the K.A. Mathialagan case11,  and Nipamacha Singh v.  Secretary,

Manipur Legislative Assembly14.

102. It  was also submitted,  that the Tenth Schedule,  was added to the

Constitution,  by  the  Constitution  (Fifty-second  Amendment)  Act,  1985

which came into force with effect from 1.3.1985.  It was pointed out, that

under the Tenth Schedule power is vested with Speaker alone, for exercising

quasi-judicial functions (under Paragraph 6, of the Tenth Schedule).  It was

contended, that any misuse of the power vested with the Speaker under the

Tenth  Schedule,  could  result  in  derailing  the  democratic  process  of  the

concerned State.  Insofar as the present controversy is concerned, it was

pointed out, that the concerned Speaker – Nabam Rebia, issued notices to

14 MLAs belonging to the INC, for their disqualification on 7.12.2015, and

thereby, took active steps to derail the democratic process, specially when, a

resolution for his own removal had already been moved (on 19.11.2015).  It

was  asserted,  that  the  action  of  the  Governor  in  requiring,  that  “… no

Presiding  Officer  shall  alter  the  party  composition  in  the  House”  in  the

message  dated  9.12.2015,  was  only  aimed  at  preserving  the  democratic

process, so that the Speaker by exercising his quasi-judicial powers under

the Tenth Schedule, would not so change the composition of the House, as

would favourably tilt the motion for his removal, in his own favour.  It was

accordingly asserted, that no motive should be attributed to the message of

the Governor dated 9.12.2015, more particularly, paragraph 5 thereof.  It

was submitted, that save and except the ultimate desire of the Governor to

13 AIR 1969 SC 903 14 AIR 2002 (Gauhati) 7

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preserve the democratic process, the message dated 9.12.2015 had no other

fall  out/consequence.   It  was  also  contended,  that  as  the  question  of

removal  of  the  Speaker  was  pending  consideration  before  the  House,  it

would have been a serious constitutional  impropriety  on the part of  the

Speaker, to carry on presiding over the proceedings of the House, and more

particularly, to conduct or continue with the quasi-judicial functions vested

with him, under the Tenth Schedule.  In conclusion, 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.

103. It was asserted by learned senior counsel, that it was apparent from

the  facts  and  circumstances  of  the  present  case,  that  the  Speaker  had

entertained a petition for disqualification, against 14 MLAs belonging to the

INC on 7.12.2015, well after, the Governor had sought information, about

the notice for the removal of the Speaker.  It was submitted, that in the first

instance, the Secretary of  the Legislative Assembly,  maintained complete

silence, and chose not to respond to the letter(s) of the Governor. Finally

through a communication dated 7.12.2015, the Secretary of the Legislative

Assembly wrote to the Governor, informing him that the Speaker was on

tour, and the notice of resolution for his own removal (for the removal of the

Speaker – Nabam Rebia), as well as, that of the Deputy Speaker – Tenzing

Norbu Thongdok, were in the personal custody of  the Speaker – Nabam

Rebia.  In the above view of the matter, it was submitted, that it was natural

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for the Governor to have addressed the message dated 9.12.2015, with a

clear description of the manner in which the proceedings of the House were

to be conducted, when the 6th session commenced on 16.12.2015.   This

was done by the Governor, according to learned counsel, only to ensure that

procedure adopted by the House, was in consonance with the provisions of

the Constitution, and the ‘Conduct of Business Rules’.

104. Based on the aforementioned submissions, it was the contention of

Mr. Rakesh Dwivedi, learned senior counsel, that the prayers made by the

appellants  before  this  Court,  being  devoid  of  any  merit,  deserved  to  be

rejected.

105. Mr. T.R. Andhyarujina, learned Senior Advocate, entered appearance

on behalf of respondent no. 16 – the Governor of the State of Arunachal

Pradesh.  It would be pertinent to mention, that the Governor had entered

appearance before the High Court, by moving an interlocutory application,

for the limited purpose of justifying his order and message dated 9.12.2015,

and also, in order to demonstrate that he was unaware of the notice of the

resolution dated 16.11.2015, moved for the removal of the Deputy Speaker

– Tenzing Norbo Thongdok.

The sixth sequence of facts:

106. It  was  contended  by  learned  senior  counsel,  that  there  had  been

political  turmoil  in  the  State  of  Arunachal  Pradesh,  since  March/April,

2015.  It was pointed out, that the situation got worst in September, 2015,

when a group of 21 MLAs belonging to the INC, clamoured for a change of

guard, which was targeted at  the Chief  Minister  –  Nabam Tuki.   It  was

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submitted, that the above 21 MLAs had camped in Delhi for three months,

so  as  to  press  their  claim before the  central  leadership  (of  the National

Congress Party).  During the above period, all the 21 MLAs belonging to the

INC, had refused to attend meetings of the Congress Legislature Party in the

State of  Arunachal  Pradesh.   This factual  position,  according to  learned

senior counsel, has been acknowledged by the appellants themselves, even

before this Court.  

107. It was submitted, that on 14.9.2015, 17 of the 21 MLAs belonging to

the INC, were invited for an informal dinner by the Chief Minister – Nabam

Tuki, at his official residence.  At the aforesaid dinner, they were coerced

into signing identically worded resignation letters.  It was submitted, that

the Speaker – Nabam Rebia, was also present at the dinner hosted by the

Chief Minister.  It was brought out, that rather than accepting all the 17

resignation letters, the Speaker – Nabam Rebia, accepted resignation letters

of only two of the MLAs - Gabriel D. Wangsu and Wanglam Sawin.  Having

accepted the two resignation letters, the Speaker issued a notification on

1.10.2015,  declaring  that  their  respective  Assembly  segments,  had been

rendered  vacant  (under  Article  190).   It  was  pointed  out,  that  on

11.10.2015,  the  aforesaid  MLAs  addressed  a  letter  to  the  Governor

complaining about the manner in which their resignation letters were got

signed  under  coercion,  as  also,  the  illegal  acceptance  thereof.   It  was

pointed out, that the aforesaid letter(s) were available on the record.  The

letters referred to, are not being extracted herein for reasons of brevity.  It

was submitted, that the said two members of the House, whose resignations

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were accepted, approached the Gauhati High Court, by filing Writ Petition

(C)  No.6193 of  2015.  On 7.10.2015,  the High Court  passed an interim

order  staying  the  orders  accepting  their  resignations.   The  above  writ

petition, it was submitted, was dismissed by the High Court on 12.1.2016,

and a Petition for Special Leave to Appeal assailing the same, was dismissed

by this Court.  It was pointed out, that the subsequent dismissal of the

judicial  proceedings  by  the  High  Court,  and  by  this  Court,  were

inconsequential,  inasmuch as,  at  the  relevant  juncture,  the  High  Court

having found prima facie merit in the claim raised by the two MLAs, against

the acceptance of their resignation letters, had stayed the operation of the

order by which their resignation letters had been accepted.  It was urged,

that it was relevant to keep in mind the impression which would have been

created in the mind of the Governor, by the said interim directions.

108. It was submitted, that immediately after the resignation of the two

MLAs was accepted, 21 MLAs belonging to the INC, wrote to the Governor

on 11.10.2015, that the Chief Minister – Nabam Tuki,  did not enjoy the

majority of the House, and as such, was running a minority government.

Shortly after the receipt of the communication dated 11.10.2015, 13 MLAs

(11 from the BJP, and 2 Independent MLAs) issued a notice of resolution for

the  removal  of  the  Speaker  –  Nabam  Rebia,  under  Article  179(c)  on

19.11.2015.  It was submitted, that the aforesaid notice ought to have been

taken up at the earliest, and in any case, soon after the expiry of 14 days

(expressed in the first proviso, under Article 179).  It was highlighted, that

on the same day on which the notice was moved, a copy of the resolution

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(dated 19.11.2015) was endorsed by the MLAs to the Governor.  And on the

same day – 19.11.2015, all the 13 signatories to the resolution for removal

of  the  Speaker,  made  a  written  request,  to  the  Governor,  seeking

preponement  of  the  6th  session  of  the  House.   And  for  an  urgent

consideration by the House, of the resolution for the removal of the Speaker

– Nabam Rebia.  (this communication, has been extracted above).

109. It was further the submission of learned senior counsel, that in order

to  derail  the  action  initiated  by  the  13  MLAs,  seeking  removal  of  the

Speaker, the Chief Whip of the Congress Legislature Party – Rajesh Tacho,

petitioned the Speaker under Article 191(2) on 7.12.2015, to disqualify 14

MLAs, belonging to the INC, on account of their having allegedly given up

their  allegiance/membership  to  the  political  party  (-  the  INC)  on  whose

ticket they had been elected to the House.  The above petition, called for

their disqualification under the Tenth Schedule.  It was submitted, that the

Governor having viewed the developments referred to hereinabove, found it

appropriate to exercise his discretion under Article 174, to prepone the 6th

session of the Assembly, from 14.1.2016 to 16.12.2015.  It was asserted,

that  the  aforesaid  action  of  the  Governor,  would  enable  the  House  to

consider the notice of resolution for the removal of the Speaker – Nabam

Rebia, at the earliest, in consonance with Article 179(c) and Rules 151 to

153 of the ‘Conduct of Business Rules’.

110. It was submitted, that the factual position depicted hereinabove, had

not been invented by the Governor, in order to satisfy the High Court or this

Court,  on the then prevailing political conditions, which necessitated the

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passing of the order and the message dated 9.12.2015, but was apparent

from the monthly letters, addressed by the Governor to the President.  It

was pointed out, that the first of the above letters, was addressed by the

Governor  to  the  President  on  17.10.2015.   An  extract  of  the  same  is

reproduced hereunder:

“No. GS/I(C)-129/2014 (Vol-II) 17th October, 2015

Hon’ble Shri Pranab Mukherjee Ji, This  is  a  Special  Report  on  the  latest  significant  political

developments in my State of Arunachal Pradesh. In view of the prevailing political imbroglio in the State arising

out of growing dissidence in the Congress, the Congress Legislators seem to be divided into two groups, due to internal infighting among them  for  power  and  position  and  also  one  group  demanding resignation of the Chief Minister Shri Nabam Tuki for alleged failure. Media reports indicate that the dissident group has been camping at New Delhi to appeal to the AICC Central Leadership for a change of leadership  in  the  State,  but  AICC  has  not  yet  responded  to  their appeal.  As per media report, Shri Kalikho Pul, the former Finance Minister of the State and sitting MLA is allegedly leading the dissident group and about  37 Legislators  in the 60-Member State  Assembly have agreed to support Shri Kalikho Pul’s bid for leadership.   The State BJP termed it as unfortunate and demanded the resignation of Chief Minister Shri Nabam Tuki, accusing him of failing to honour the people’s  mandate  alleging  that,  as  a  result,  the  developmental activities  continued  to  be  adversely  affected  due  to  the  existing political  scenario.   It  is  pertinent  to  mention  here  that  Arunachal Pradesh has a 60-Member Assembly, out of which Congress has 47, BJP-11  and  2  Independent  Legislators.   However,  the  Arunachal Pradesh  Congress  Committee  Chief  Shri  Padi  Richo  said  that  the report was false, fabricated and misleading.

It is reported that, in a high political drama, on 16  th   September, 2015, Shri Gabriel Denwang Wangsu and Shri Wanglam Sawin, both Congress MsLA, were invited to a dinner party at the residence of Shri Nabam Tuki,  Chief  Minister  where 17 MsLA of  the Congress party attended.  Some loyalists of Shri Nabam Tuki compelled them to sign in  resignation  letters  without  even  reading  the  content  therein,  in front of Shri Nabam Tuki, Chief Minister, Shri Nabam Rebia, Speaker of  the  State  Assembly  and  the  President  of  Pradesh  Congress Committee.  On 1  st   October, 2015 the Secretary, Legislative Assembly notified  the  resignation of  two  Legislators  –  Shri  Gabriel  Denwang Wangsu, MLA Kanubari and Shri Wanglam Sawin, MLA Khonsa (East) have resigned from the Arunachal Pradesh Legislative Assembly and

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the Speaker has accepted their resignations under the provision of Rules of Procedure and Conduct of Business of the Assembly.  The Notification further informed that consequent upon their resignation, the  seats  of  55-Khonsa  East  (ST)  AC  and  58-Kanubari  (ST)  AC respectively have fallen vacant. (Notification at Annexure-I). The two MsLA in  a  written  complaint  dated 11  th   October,  2015 to  the Governor  informed  about  their  being  coerced  to  submit  typed resignation letters addressed to the Speaker “under complete duress” and requested for instituting an enquiry into the whole ‘resignation incident’ through an agency like the CBI.  A copy of Joint Complaint letter dated 11th October, 2015, addressed to the Governor by Shri Gabriel Denwang Wangsu, MLA Kanubari and Shri Wanglam Sawin, MLA Khonsa (East) is enclosed at Annexure-II for your kind perusal.

They  also  submitted  another  complaint  stating  that  some anti-social  elements  and  local  miscreants  frequently  visited  their official  residences  at  Itanagar  and  private  property  giving  mental agony and raising fears in them and their families.  In view of the above,  I  advised the State Home Minister  with copies to the State Chief Minister, Chief Secretary and DGP to look into the issue and direct all concerned to provide necessary security to Shri Wanglam Sawin,  MLA and  Shri  Gabriel  D.  Wangsu,  MLA  and  also  to  their family members, and that the miscreants / culprits involved in the intimidation  cases  be  apprehended  and  brought  to  justice,  at  the earliest. (Copy at Annexure-III).

While condemning the move to obtain resignation letter of 17 MsLA by coercing them and putting them under duress, the People’s Party  of  Arunachal  (PPA)  termed  the  alleged  forced  resignation  as ‘murder of democracy’ and demanded immediate intervention of the Governor on the matter to ascertain that the two Legislators should get back their constitutional rights.  Opposition Leader Shri Tamiyo Taga (BJP), who himself was once the Speaker of the State Assembly, questioned the role of the Speaker Shri Nabam Rebia, for misusing his  power  and  position  by  creating  political  drama  over  the resignation of two sitting MsLA, and stated that the MsLA resigned from the State Assembly under duress.

Aggrieved  by  the  Order  of  the  Hon’ble  Speaker,  Sarvashri Wangsu and Sawin filed Writ Petition before the Hon’ble Gauhati High Court vide WP(C) 6193/2015 praying for relief.  The Hon’ble Gauhti High  Court  on  7  th   October,  2015  stayed  the  Notification  of  the Speaker of Arunachal Pradesh Legislative Assembly dated 01.10.2015 accepting  the  resignation  letters  of  the  two  Congress  MsLA  and declaring  the  seats  vacant  in  their  respective  constituencies,  and directed that the Election Commission shall not take any action on the  basis  of  the  Notification  to  hold  bye-election.  In  another development,  in  a  joint  letter  addressed  to  the  Governor,  the Arunachal  Students’  Federation  (ASF)  and  the  Wancho  Students’ Union (WSU) urged to impose President’s Rule in the State, following the disclosure of the resignation of two MsLA.

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Meanwhile, Shri Kalikho Pul, MLA recently complained to me about threats being issued to him by unknown miscreants and also threats meted out to his family members by a group of miscreants / criminals  at  his  Official  Bungalow.   He  requested  for  providing adequate security to him and his family members as he apprehended grave threats to their lives.  I advised the State Home Minister with intimation to  the  Chief  Minister,  Chief  Secretary  and DGP to  take immediate steps to provide necessary security  to  Shri  Pul  and his family and also to direct the Police authorities to take up investigation of the Case, identify and arrest the culprits and bring them to book under the Law, at the earliest.

xxx xxx xxx For kind information of Hon’ble President of India please. With Esteemed Regards,

Yours sincerely, signed  (illegible) (J.P.  Rajkhowa)”

111. The second of the letters addressed by the Governor to the President

was dated 19.11.2015.  An extract of the same is reproduced hereunder:

“No. GOV-AP/SPL-REP/2015 19th November, 2015

Hon’ble Shri Pranab Mukherjeeji, This  is  a  Special  Report  highlighting  some  latest  significant

developments in my State of Arunachal Pradesh. In continuation to my Special Report on Political Development

in  the  State  vide  No.GS/I(C)-129/2014 (Vol-II)  dated  17th October, 2015 and my subsequent Monthly Report for the Month of October, 2015 No. G/ML/2015 dated 1st November 2015, it has been observed that  the  political  imbroglio  in  the  State  has  been  storming  with growing dissidence amongst the Congress Legislators, including some Ministers due to internal infighting for changing of leadership in the State.

The  Congress  Legislature  Party  (CLP)  with  47  MsLA  in  a 60-Member House has cracked into two rival factions in the recent past.  It  was  reported  that  the  Congress  Legislature  Party  (CLP) Meeting was held at Rajiv Gandhi Bawan, Itanagar on 8th November, 2015, which was attended by 25 Congress Legislators including Shri Nabam  Tuki,  Chief  Minister,  Shri  V.  Narayanasamy,  General Secretary,  AICC  and  Dr.  K.  Jaya  Kumar,  Secreary,  AICC,  both In-Charge of Arunachal Pradesh also attended the Meeting along with Shri  Padi  Richo,  Aunachal  Pradesh  Congress  Committee  (APCC), Office Bearers of APCC, and prominent leaders of INC Party from all the Districts of Arunachal Pradesh.  Those in support of Shri Nabam Tuki are stationed in Itanagar, the Capital City, making occasional appearances  before  the  media  with  the  Chief  Minister,  while  the

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dissidents  group,  comprising  21  Congress  Legislators,  seeking  a change  of  leadership,  citing  “ineffective  governance”,  financial mismanagement, corruption and autocratic way of functioning of the Chief Minister Shri Nabam Tuki, have been camping in Delhi for the past two months or so.

The Legislators present in the Meeting condemned the dissident Legislators for abstaining from the CLP Meeting.  The Legislators who attended the CLP Meeting were, (1) Shri Nabam Tuki, Chief Minister, (2) Shri Tanga Byaling, Home Minister, (3) Shri Gojen Gadi, Minister PWD & Election,  (4)  Shri  Rajesh Tacho,  Minister  Health  & Family Welfare  &  Parliamentary  Affairs,  (5)  Shri  Tapang  Taloh,  Minister, Education, Libraries, Textile, Handloom & Handicrafts & Department of  Water  Resources  Development,  (6)  Shri  Jomde  Kena,  Minister, Transport and Civil  Aviation, Cooperation, (7) Shri Phurpa Tsering, Minister,  Animal  Husbandry  &  Veterinary,  Power  (Civil),  (8)  Shri Tirong  Aboh,  Minister,  Department  of  Development  of  Tirap, Changlang Districts  and Mines with  additional  department of  Civil Supplies and Consumer Affairs, (9) Shri Takam Pario, Minister, Public Health  Engineering  &  Water  Supply,  Department  of  Disaster Management, (10) Shri Techi Kaso, Parliamentary Secretary, (11) Shri Kumsi  Sidisow,  Parliamentary  Secretary,  (12)  Shri  Alo  Libang, Parliamentary  Secretary,  (13)  Shri  Mama  Natung,  Parliamentary Secretary, (14) Shri Jambey Tashi, Parliamentary Secretary, (15) Shri Tapuk  Taku,  Parliamentary  Secretary,  (16)  Shri  Pani  Taram, Parliamentary  Secretary,  (17)  Shri  Nikh  Kamin,  Parliamentary Secretary, (18) Shri Dikto Yekar, Parliamentary Secretary, (19) Smt. Gum  Tayeng,  Parliamentary  Secretary,  (20)  Shri  Karya  Bagang, Parliamentary  Secretary,  (21)  Shri  Bamang  Felix,  Parliamentary Secretary,  (22)  Shri  Nyamar  Karbak,  Parliamentary  Secretary,  (23) Shri  Punji  Mara,  Parliamentary  Secretary,  (24)  Shri  Likha  Saaya, Parliamentary  Secretary  &  (25)  Shri  Tatung  Jamoh,  Parliamentary Secretary.

As per the media report, Shri V. Narayanasamy, AICC In-charge Arunachal Pradesh declared Shri Nabam Tuki, Chief Minister as the undisputed leader and claimed the State Government 100% stable. He termed the absence of 21 dissident MsLA in CLP Meeting as an act of indiscipline and alleged State BJP and Union Minister of State for Home Affairs Shri Kiren Rijiju to be behind this open defiance and have  been  creating  disturbance  and  hurdles  in  developmental activities.   In  the  Meeting,  it  was  reportedly  decided  to  initiate disciplinary  action  against  the  dissident  Legislators,  who  did  not attend the CLP Meeting.  He also reportedly  stated  that  he would submit a report  to  the Party High Command on the situation and suggest disciplinary action against the 21 MsLA.  Prominent among the 21 Legislators included former Ministers Shri Kalikho Pul, Shri Chowna  Mein,  Shri  Kumar  Waii,  Shri  Wanglin  Lowangdong,  Shri Thangwang Wangham, Shri Kamlung Mossang, most of whom were dropped from the Ministry led by Shri Nabam Tuki recently.

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The  State  BJP  strongly  condemned  the  above  unwarranted statements of Shri Narayanasamy as political statements not based on truth and out of frustration due to their failure to put their house in order.

Meanwhile,  State  BJP  Legislators  have  submitted  a Memorandum dated 12  th   November, 2015 to the Governor apprising him the  recent  political  crisis  in  the  State and  requested  to  take appropriate and proactive action on the issue (copy at Annexure-I). They alleged that the “stretched” political stalemate has put the State under  “complete  darkness”  and  the  continuation  of  the  present Congress  Government  has  made  each  and  every  citizen  very “vulnerable”.  In the Memorandum they claimed that in the House of total 60 Members, any Legislature Party to form a Government must enjoy  the  confidence  or  support  of  minimum  31  Members  of  the House, but the Government led by Shri Nabam Tuki commands the support and confidence of only 25 Legislators.  They also requested the Governor  to  ask the  State  Government not  to  take any major decisions  in  financial  matters  because  Chief  Minister  Shri  Nabam Tuki’s Government has been reduced to a minority.  The State BJP also reiterated its demand that the ruling Congress Government in the state should surrender paving way for new regime to take over. Highlighting the present political situation in the state, the BJP, in a Press  Statement,  claimed  that  the  long  political  stalemate  in  the rebel-plagued Government has brought all developmental activities to a grinding halt and the long absence of the rebel MLAs from the state has totally paralyzed the State.

In the meantime, Peoples’ Party of Arunachal (PPA) in a Press Statement said that the Leader of the Opposition should immediately call upon the Governor of the State and urge him to instruct the Chief Minister  to  prove  his  majority  or  step  down,  owning  moral responsibility.

xxx xxx xxx I  will  keep you informed of  the  subsequent  developments,  if

any, on the above issues, in my subsequent Report. With Esteemed Regards,

Yours sincerely, signed (illegible) ( J.P. Rajkhowa ) ”

112. The last letter addressed by the Governor to the President, before the

issuance  of  the  order,  and  the  message  dated  9.12.2015  was  dated

1.12.2015.  An extract of the same is reproduced hereunder:

“No. G/ML/2015 01 Dec, 2015

Hon’ble Shri Pranab Mukherjee ji,

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My report for the month of November, 2015, briefly giving an outline of various events in Arunachal Pradesh is placed below for your kind perusal.

xxx xxx xxx On  19  th   November,  2015,  thirteen  Legislators  submitted  a

Memorandum  to  the  Governor,  praying  to  rescind  the  Summons issued for the House to meet on 14  th   January, 2016 and re-issue the Summons for  the House to  meet  at  an emergent  date so that the Resolution  aforesaid  is  considered  and  disposed  at  the  earliest  in accordance with the scheme, purpose and timeframe envisaged by the Constitution makers.” (Copy at Annexure-I).  

Further,  13  Members  of  the  Arunachal  Pradesh  Legislative Assembly (APLA), addressing a letter to the Secretary of the Assembly, issued a Notice of the following Resolution, under Article 179(c) read with Article 181 of the Constitution of India and Rules 151 to 154 of the Rules of Procedure and Conduct of Business of APLA, for removal of the present Speaker.

“That this House removes Shri Nabam Rebia from the Office of the  Speaker  of  the  Arunachal  Pradesh  Legislative  Assembly  with immediate  effect.”   The  signatories  have  given  five  grounds,  in justification, including one of committing the “moral turpitude of the highest order thereby making him ineligible to occupy the high office of the Speaker”, since he was reportedly “caught in an ugly scandal involving a woman from the State” who lodged an FIR on 15-11-2015 in the Women Police Station, Itanagar. (copy at Annexure-II).

While voicing on the same tune, the Peoples’ Party of Arunachal (PPA)  also  demanded  the  Governor  to  prepone  the  Session  of Legislative  Assembly  slated  to  be  held  from  14  th   January,  2016, alleging that the present Nabam Tuki led Govt. has completely lost the confidence of the people and has been reduced to a minority and hence needs to prove his majority in the floor of the House.

It is pertinent to mention here that the present political scenario of such a long-drawn impasse extending over nearly three months, with 21 Congress Legislators camping in Delhi to impress upon the party Central Leadership for removing Shri Nabam Tuki from the post of Chief Minister, is not at all in the interest of the people and the State,  which  requires  urgent  and  immediate  redressal,  keeping  in mind that political stability is of utmost importance for the welfare of the people of this strategic border State.

The attention of the Raj  Bhavan has been drawn to the news item in one of the local dailies, the Dawnlit Post, with headline ‘Tuki led  Government  is  100  percent  stable:  Narayanasamy;  Eastern Sentinel,  with  Headline  ‘Tuki,  undisputed  leader:  Narayanasamy’; Arunachal  Front,  with  a  headline  ‘AICC top  brasses  elicit  25  CLP MsLA view to report to Delhi’, where it states that ‘Modi replaced all the Governors by RSS men and the present State Governor wrote a letter against the Hollongi Greenfield Airport without consulting the CM which was unconstitutional.  The Governor has turned the Raj

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Bhavan into  BHP Hqs,  Narayanasamy alleged.   I  expressed strong disapproval  to  such wild  allegation  by  a  former  Union Minister  of State, Shri V. Narayanasamy, who is one of the senior leaders of one of  the  major  political  parties  of  the  country.   A copy of  the Press Release issued from the Raj Bhavan is attached vide Annex-‘B’.

xxx xxx xxx During the month under report,  the insurgent activities,  like

forcible tax collection by three factions of NSCN (K), NSCN (IM) and NSCN (R) in three Districts, i.e. Tirap, Changlang and Longding are still continuing.

The Detailed Report is enclosed herewith. With kindest regards,

Yours sincerely, signed (illegible) (J.P. Rajkhowa)”

113. Based on the three monthly reports submitted by the Governor to the

President, 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 submitted, that it was legitimately apprehended

(- by the Governor), that the Speaker who was facing a notice of resolution

for his removal, would exercise his powers under the Tenth Schedule, to

disqualify  the  dissident  MLAs (belonging  to  the  INC),  and  thereby  stage

manage his majority in the House, with the support of the Chief Minister.

This in turn, it was urged, would ward off the threat to the position of the

Chief  Minister,  as  well.   It  was  submitted  that,  it  was  in  the  above

background, that the Governor expressed in his message dated 9.12.2015,

that the Presiding Officer during the course of consideration of the notice of

resolution  for  the  removal  of  the  Speaker,  would  not  alter  the  party

composition  in  the  House.   It  was  submitted,  that  the  aforesaid

apprehension entertained by the Governor, came out to be true, when the

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Speaker  of  the  Legislative  Assembly,  issued  notices  on  7.12.2015

(returnable for 14.12.2015) for the removal of the said 14 MLAs, belonging

to the INC.  It was pointed out, that even though none of the above MLAs

were served,  proceedings  against  them  were  simply  adjourned  to  the

following  day  -  15.12.2015.   Even  the  adjourned  date  was  not  to  the

knowledge of the MLAs proceeded against.  And despite the fact, that none

of the MLAs whose disqualification was sought,  had been served or had

entered appearance in the proceedings,  they were all  disqualified by the

Speaker, on 15.12.2015.  According to learned senior counsel, this action of

the Speaker resulted in depletion of the strength of the Assembly.  This

depleted strength had the effect of reviving and securing his own majority,

which was sufficient  to  effectively  defeat  the  notice  of  resolution  for  his

removal.   It  was  submitted,  that  it  is  evident  that  the  order,  and  the

message of the Governor dated 9.12.2015, were based on good and sound

reasons, and were aimed at preserving an honest democratic process in the

State.

The next instalment, of the legal response, on behalf of the respondents:

114. Relying on the decisions rendered by this Court in the Samsher Singh

case1,  and  in  Madhya  Pradesh  Special  Police  Establishment  v.  State  of

Madhya Pradesh15, as also, in State of Gujarat v. Justice R.A. Mehta16, and

especially  in  the  Satya  Pal  Dang  case13,  it  was  submitted,  that  the

Governor’s power to prorogue the Legislative Assembly under Article 174(2)

was  absolute,  and  without  any  restriction  and  restraint,  and  that,  the

15 (2004) 8 SCC 788 16 (2013) 3 SCC 1

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Governor could exercise his said power, in his own discretion without any

aid or advice.

115. Having invited our attention to Article 163(2), it was submitted, that

the power of the Governor with reference to a situation, in which he is to act

in his own discretion is not only final,  but also that,  the validity  of  the

exercise of such discretion by the Governor, cannot be called in question,

before any Court.  It was asserted, that no one whatsoever had the right to

determine, whether the Governor ought or ought not to have acted, in his

discretion. It was submitted, that the only situation, where the exercise of

discretion by the Governor, can be called in question is, when it can be

established,  that  the  Governor’s  action  was  perverse  or  capricious  or

fallacious or extraneous or for a motivated consideration.  In other words,

when the exercise of discretion, can be described as mala fide.  Then, and

then alone, according to learned counsel, the same can be questioned by

adopting a process of judicial review. It was submitted, that the scope of

interference in the discretion of the Governor under Article 163(2), has to be

accepted as extremely limited.  It was pointed out, that Article 163(2) is a

unique provision.  It was acknowledged, that its ambit and scope had not

yet been determined by this Court.   It  was urged, that the power of the

Governor to exercise functions on his own, without the aid and advice of the

Council  of  Ministers  headed  by  the  Chief  Minister,  is  well  known.

Illustratively,  reference  was  made  to  Articles  200,  239(2),  356,  371(2),

371A(1)(b),  371C(1),  371F(g),  and in  addition  thereto,  the  powers  vested

with the Governor under Paragraph 9 of the Sixth Schedule.  It was further

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urged,  that  there  were  other  situations  also,  wherein  discretion  to  act

independently,  has  been  conferred  on  the  Governor,  even  though  not

specifically  expressed,  by  or  under  any  provision  of  the  Constitution.

Reference  was  made  to  the  selection  of  the  Chief  Minister  after  fresh

elections  under  Article  164;  the  authority  to  obtain  a  fresh  vote  of

confidence; where it appears to the Governor that the Chief Minister and his

Council of Ministers no longer enjoy the majority in the House.  Reference

was  also  made  to  the  Samsher  Singh  case1 (paragraph  154  –  already

extracted above), wherein this Court referred to obvious situations, in which

the Governor would act at his own.

116. Reference  was  also  made  to  the  Madhya  Pradesh  Special  Police

Establishment  case15,  wherein  this  Court  recognised the  fact,  that  there

would  be  many  situations  where,  for  reasons  of  peril  to  democratic

principles, the Governor was liable to act at his own, without subjecting

himself  to  the  aid  and  advice  of  the  Chief  Minister  and  his  Council  of

Ministers.  It was explained, that in matters where the Governor is of the

view, that the advice of the Council of Ministers was likely to be biased or

partisan,  or  where there is  a  conflict  of  interest  between the Council  of

Ministers on the issue under consideration, it would be open to a Governor

to act at his own.  And in such cases, even if  advice is tendered by the

Council of Ministers, the Governor could legitimately ignore the same.  It

was pointed out, that the above position was reiterated in the Justice R.A

Mehta  case16,  wherein  this  Court  while  interpreting  Article  163(2)

concluded,  that it  would  be permissible  for  the Governor to act  without

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ministerial  advice,  even  in  the  absence  of  an  express  provision  in  the

Constitution.   

117. Insofar  as  the  present  controversy  is  concerned,  learned  senior

counsel asserted, that Article 174 itself vests the power with the Governor,

to  summon,  prorogue  or  dissolve  the  Legislative  Assembly.   It  was

submitted,  that  a  perusal  of  Article  174  reveals,  that  there  are  no

restrictions  on  the  powers  of  the  Governor,  in  the  above  matters.   The

Governor’s decision determining the place and time, where and when the

House would meet, according to learned counsel, is also demonstrative of

the  determination  of  the  same,  by  himself.   It  was  submitted,  that

summoning the Assembly is a part of the discretion referred to in Article

163(1),  where  the  Governor  can  act  without  the  aid  and  advice  of  the

Council of Ministers.  And further that, the decision of the Governor in the

above matter is final, and cannot be questioned, because it is so mandated,

under Article 163(2).  It was therefore asserted, that the discretion exercised

by the Governor in preponing the meeting of the Assembly from 14.1.2016

to 16.12.2015, was fully justified and within the individual domain of the

Governor.

118. On the subject of judicial review, in respect of the discretion exercised

by the Governor under Article 163(2), it was submitted, that this Court in

Kesavananda Bharati v. State of Kerala17,  held that the provisions of the

Constitution cannot be amended, so as to alter the basic structure of the

Constitution.  It was acknowledged, that the power of judicial review has

been recognised as a part of the basic structure of the Constitution.  It was

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submitted, that the concept of the basic structure, is not applicable to the

original  provisions  of  the  Constitution.   It  was  emphasized,  that  Article

163(2) is an original provision of the Constitution, and therefore, it cannot

be tested on the touchstone of the concept of the basic structure.  It was

pointed out, that the founding fathers of the Constitution, desired to vest

absolute discretion with the Governor, to determine whether he ought to act

in his discretion.  It was urged, that the founding fathers made it explicitly

clear, that the decision of the Governor taken in his discretion would be

final, and additionally, anything done by the Governor while exercising his

discretion under Article  163(2),  would not be called in question.  It  was

submitted, that a plain reading of the above provision, leaves no room for

any doubt, that the framers of the Constitution vested with the Governor an

unambiguous authority to exercise his discretion under the provisions of

the Constitution.  The founding fathers also desired, that such discretion

exercised by the Governor should be final.  It was therefore submitted, that

the  very  suggestion  at  the  hands  of  the  appellants,  that  the  order  and

message of the Governor dated 9.12.2015, were subject to judicial review,

was liable to be rejected.

119. In  order  to  demonstrate  the  uniqueness  of  the  position  of  the

Governor, learned senior counsel desired this Court to contrast Article 163

with Article 74.  It was pointed out, that Article 74 requires the President, to

exercise his functions in accordance with the aid and advice tendered to

him by the Council of Ministers (with the Prime Minister as the head).  And

under no circumstances, in his own discretion.  It was urged, that while

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examining the scope of functions vested with the Governor, it needs to be

visualized that Article 163(1) postulates situations, wherein the Governor is

to exercise his functions, as provided for by or under the Constitution, in

his own discretion.  It was highlighted, that under Article 163(2), in case of

a  dispute,  whether  or  not  a  particular  function  could  or  could  not  be

exercised  by  the  Governor  in  his  own discretion,  the  Governor  and  the

Governor alone, is mandated to take call on the matter.  And his decision on

the matter, is final.  According to learned senior counsel, in the discharge of

functions under the Constitution,  the determination at the hands of  the

Governor is different from that of the President.  The Governor has clear

discretionary powers,  whereas the President has none.  Furthermore,  as

noticed above, Article  163(2) assigns finality to the determination by the

Governor, as to whether he was required by or under the Constitution to act

in  his  own  discretion.   Not  only  that,  the  said  determination  by  the

Governor “… shall not be called in question on the ground that he ought or

ought not to have acted in his discretion …”.   

120. It  was  therefore  submitted,  that  in  all  matters  where,  by  a

constitutional provision, the Governor is required to discharge a particular

function, the manner in which that function is to be discharged, would have

to  be  determined by the  Governor himself.   It  was submitted,  that  that

could be the only  legitimate  conclusion,  on an effective  comparison and

understanding of Articles 74 and 163.  It was in the instant background,

that  learned  senior  counsel  drew  our  attention  to  Article  174,  which

according to him, unambiguously vests in the Governor, the responsibility

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to summon the State Legislature.  Not only that, it was submitted, that the

Governor is also vested with the responsibility to determine “as he thinks

fit”,  when and where the House would meet.   Likewise,  the Governor is

authorized to prorogue and dissolve the House, from time to time, as he

may  choose.   It  was  therefore  submitted,  that  in  the  facts  and

circumstances of the present case, when the Governor by his order dated

9.12.2015, took the decision by exercising his discretion, to summon the

House by preponing the 6th session of the Assembly from 14.1.2016 (as

earlier  fixed),  to  16.12.2015.   The  above  discretion  exercised  by  the

Governor was bound to be accepted as final,  and could not be called in

question.  It  was submitted, that judicial  review of the above order, was

clearly barred, except if it could be shown, that the above discretion was not

exercised  by  the  Governor  bona  fide and on  due  consideration.   It  was

submitted,  that  the  exercise  of  discretion  at  the  hands  of  the  Governor

under Article  163(2),  was an area of non-justiciability.   And that, it  was

impossible  to  get  over  the  bar,  except  to  the  limited  extent  referred  to

hereinabove.   

121. In  the  above  view  of  the  matter,  for  exactly  the  same  reasons

expressed by learned counsel with reference to the order dated 9.12.2015, it

was submitted, that the discretion exercised by the Governor in addressing

the message dated 9.12.2015 under Article 175, was also in exercise of due

discretion,  without  any  oblique  motives,  and  to  further  the  democratic

process, in consonance with the provisions of the Constitution, as also, the

‘Conduct of Business Rules’ (framed under Article 208).  It was therefore the

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vehement contention of learned senior counsel, that the prayers made by

the appellants against the impugned order of the Governor dated 9.12.2015,

as  well  as,  the  impugned  message  of  the  Governor  dated  9.12.2015,

deserved to be rejected.

The last segment of legal submissions, on behalf of the respondents:

122. Mr. Ashok H. Desai, Senior Advocate entered appearance last of all.

His representation was on behalf of respondent nos. 21 to 30.  He assisted

the  Court  by  primarily  expounding  the  constitutional  parameters

contemplated under Articles 163 and 174.  Learned counsel examined the

aforesaid provisions, to highlight his understanding of the scope and powers

of  the  Governor.   In  order  to  broadly  demonstrate  the  functions  of  the

Governor,  it  was  submitted,  that  the  Constitution  has  vested  with  the

Governor executive, as well as, legislative functions.  It was submitted, that

Article  154  postulates  the  range  of  the  executive  power  of  the  State,

accorded to the Governor.  He placed reliance on Article 168, which declares

the office of the Governor, to be a component of the State Legislature.  It

was also pointed out, that the Governor was bestowed with legislative power

under Article 213, which authorized him to promulgate Ordinances, during

the period the State Legislature was not in session.  As against the above, it

was  submitted,  that  all  executive  actions  of  the  State  Government,  are

expressed in the name of the Governor, under Article 166.  According to

learned counsel, Article 166 also requires the Governor to make rules for

the convenient transaction of business of the State Government, and for the

allocation  of  governmental  business  amongst  Ministers.   It  was  also

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highlighted, that the Governor of a State has the power to grant pardons,

reprieves,  respites  or  remissions  of  punishment or  to  suspend,  remit  or

commute sentences of persons convicted of offences relating to matters to

which the executive power of the State extends under Article 161.  It was

submitted,  that  under Article  174,  the Governor is  required to  summon

Houses of the State Legislature, at such time and place as he thinks fit.

The  Governor  likewise,  has  the  authority  to  prorogue  and  dissolve  the

Assembly.  It was pointed out, that in a State Legislature having both a

Legislative Council and a Legislative Assembly, the Governor is authorized

to make rules relating to procedure, with respect to the business of the

House, under Article 208.  It was submitted, that no Bill can be passed by

State  Legislature(s)  to  become  law,  unless  on  being  presented  to  the

Governor under Article 200, the Governor accords his assent to the same.

It was urged, that even though Article 163 provides, that a Governor would

exercise his functions on the aid and advice of a Council of Ministers with

the Chief Minister as the head, yet the same Article notably authorizes the

Governor to carry out certain functions in his own discretion, without any

aid and advice.  It was pointed out, that it was inter alia on the receipt of a

report  from the Governor of  a  State,  that  the President may,  in  case of

failure  of  the  constitutional  machinery,  declare  that  the  power  of  the

Legislature  of  the  State,  would  be  exercised  under  the  authority  of  the

Parliament.  It was contended, that the power and position of the Governor

and the contours, while interpreting the scope and extent of his powers and

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functions, should be determined on the basis of the responsibilities and the

functions assigned to him under different provisions of the Constitution.

123.  It was urged by learned senior counsel, that a Governor is required to

discharge the functions assigned to him, keeping in mind the true scope

and ambit of each of the functions.  It  was pointed out,  that in case of

conflict  between  the  views  expressed  by  the  Union  Government  and  a

concerned State Government, the Governor must assume the position of an

impartial/neutral umpire.  It was submitted, that the State of Arunachal

Pradesh  (of  which  respondent  no.17,  was  the  Governor),  could  not  be

handled  in  the  same  manner  as  other  States  recognized  by  the  Indian

Constitution.   It  was submitted,  that  the State  of  Arunachal  Pradesh is

located in the north-east of India, and has one of the longest international

boundaries of any State.  It was urged, that the State had been subjected to

recurrent insurgencies from within, as also, from outside the country.  It

was also pointed out, that China which has a common border with the State

of Arunachal Pradesh, is claiming a large part of the Indian territory falling

in the State.  It  was submitted, that Article  371H recognizes the special

position of the Governor of the State of Arunachal Pradesh.  Article 371H is

extracted hereunder:

“371H.  Special  provision  with  respect  to  the  State  of  Arunachal Pradesh.—Notwithstanding anything in this Constitution,—  (a)  the  Governor  of  Arunachal  Pradesh  shall  have  special responsibility with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:  Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this clause required to act in the exercise of his individual judgment, the decision of the

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Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that  he  ought  or  ought  not  to  have  acted  in  the  exercise  of  his individual judgment:  Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Arunachal Pradesh, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;  (b) the Legislative Assembly of the State of Arunachal Pradesh shall consist of not less than thirty members.”

Based on the aforesaid provision, it was pointed out, that the Governor of

the  State  of  Arunachal  Pradesh,  is  provided with  special  responsibilities

with respect to law and order.  It was submitted, that the Governor, after

consulting the Council of Ministers, is authorized to exercise his individual

judgment, as to the action to be taken, with respect to maintaining law and

order in the State.  And that, any such action taken by the Governor in his

individual  judgment,  has  been  assigned  the  status  of  being  final  and

binding, so as not be called in question, on the plea that he ought  or ought

not to have acted, in exercise of his individual judgment.  It was however

acknowledged, that the exercise of the responsibility by the Governor under

Article 371H would remain, so long as, the approval for the same continues

to be accorded by the President.

124. On the pointed interpretation of Article 163(1), it was asserted, that a

Governor would ordinarily exercise his functions on the aid and advice of

the  Council  of  Ministers  with  the  Chief  Minister  as  the  head.   It  was

however pointed out, that under the very same provision, the Governor is

authorised by the Constitution “to exercise his functions or any of them in

his  discretion”.   It  was urged,  that  the  constitutional  powers  which the

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would be if the Government itself were to advise such a course—a highly improbable contingency—or possibly if it was notorious that a  Bill  had  been  passed  in  disregard  to  mandatory  procedural requirements;  but  since  the  Government  in  the  later  situation would be of  the opinion that the deviation would not affect the validity  of  the measure once it  had been assented to,  prudence would suggest the giving of assent.”

Reliance  was  also  placed  on State  of  Maharashtra  v.  Ramdas  Shrinivas

Nayak18,  and  our  attention  was  drawn  to  the  following  observations

recorded therein:

“10. We may add, there is nothing before us to think that any such mistake occurred, nor is there any ground taken in the petition for grant  of  special  leave  that  the  learned  Judges  proceeded  on  a mistaken view that the learned counsel had made a concession that there  might  arise  circumstances,  under  which  the  Governor  in granting  sanction  to  prosecute  a  minister  must  act  in  his  own discretion  and not  on  the  advice  of  the  Council  of  Ministers.  The statement  in  the  judgment  that  such  a  concession  was  made  is conclusive and, if we may say so, the concession was rightly made. In the facts and circumstances of the present case, we have no doubt in our mind that when there is to be a prosecution of the Chief Minister, the  Governor  would,  while  determining  whether  sanction  for  such prosecution  should  be  granted  or  not  under  Section     6     of  the Prevention of Corruption Act, as a matter of propriety, necessarily act in  his  own  discretion  and  not  on  the  advice  of  the  Council  of Ministers.”

Our  attention  was  also  drawn  to  the  Madhya  Pradesh  Special  Police

Establishment case15, where this Court held as under:

“12. …..Thus, as rightly pointed out by Mr. Sorabjee, a seven- Judge Bench of this Court has already held that the normal rule is that the Governor acts on the aid and advice of the Council of Ministers and not independently or contrary to it. But there are exceptions under which  the  Governor  can  act  in  his  own  discretion.  Some  of  the exceptions are as set out hereinabove. It is, however, clarified that the exceptions mentioned in the judgment are not exhaustive. It is also recognized that the concept of the Governor acting in his discretion or exercising independent judgment is not alien to the Constitution. It is recognized that there may be situations where by reason of peril to democracy  or  democratic  principles  an  action  may  be  compelled which from its nature is not amenable to Ministerial advice. Such a

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Speaker had endeavoured to misuse the power vested with him, under the

Tenth Schedule.  It was therefore submitted, that the action taken by the

Governor,  through  his  order  dated  9.12.2015  and  his  message  dated

9.12.2015, was surely aimed at restoring balance in the democratic process,

and as such, could not have been performed on the aid and advice of the

Council of Ministers with the Chief Minister as the head.  It was pointed

out, that not only the Council of Ministers and the Chief Minister, but also

the Speaker were misusing the constitutional powers vested with them, to

derail the democratic process, and in the facts and circumstances of the

case, the Governor was well within his rights in exercise of the discretion

vested with him under Article 163, to endeavour to preserve the democratic

process without himself interfering therewith.

126. Learned senior counsel then placed reliance on the first, third, fourth,

fifth and sixth sequences of facts, to contend that the constitutional turmoil

which prevailed in the State of Arunachal Pradesh was of a nature, wherein

it was futile to seek the aid and advice of the Council of Ministers with the

Chief Minister as the head.  In fact, it was his pointed contention, that the

situation  which  prevailed  in  the  Legislative  Assembly  of  the  State  of

Arunachal Pradesh, had erupted on account of the complicity between the

Chief Minister and the Speaker, neither of whom enjoyed the confidence of

the House.  It was submitted, that the democratic process was in peril.  It

was urged, that the Governor in compliance with the oath subscribed to by

him, at the time of assumption of office under Article 159, had passed the

order dated 9.12.2015, as also, issued the message dated 9.12.2015, which

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were aimed at preserving, protecting and defending the Constitution, and

the laws.  It was submitted, that there was no question of seeking any aid

and advice, for the purpose of preponing the 6th session of the Assembly, in

exercise of the power vested with the Governor under Article 174.  It was

submitted, that his exercise of discretion to prepone the 6th session of the

Assembly  from  14.1.2016  to  14.12.2015,  was  in  consonance  with  the

discretion vested with him under Article 163(2).  In order to justify his above

contention, it was submitted, that there was no cause for the Governor to

consult  the  Chief  Minister  –  Nabam Tuki,  who  had  lost  support  of  the

majority of the MLAs.  It was asserted, that in the same manner, as the

Governor can summon the House for a floor test, to determine whether or

not the ruling party had support of the majority, so also, the Governor was

well within his rights, to determine whether or not the Speaker, continued

to enjoy majority support.  It was submitted, that the right of a Speaker to

conduct proceedings against MLAs (who had been proceeded against under

the Tenth Schedule), can be considered to be constitutionally justified, only

if the Speaker enjoys majority support.  Once the Governor entertained the

belief, that the Speaker – Nabam Rebia, had lost support of the majority of

the MLAs, he could not be permitted to discharge the onerous constitutional

responsibility, under the Tenth Schedule.  It was urged, that it was in the

aforestated  background,  that  the  Governor  had  in  his  own  discretion,

summoned the Assembly under Article  174.   It  was submitted,  that the

instant situation is comparable to the other circumstances, wherein, even

though the Governor has not been so expressly authorized (to deal with a

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matter in his own discretion), not doing so, would amount to defeating the

constitutional  purpose sought to  be achieved.   In the above view of  the

matter,  it  was reiterated,  that  in  the  backdrop of  the  vast  and onerous

functions vested with the Governor, it cannot be doubted, that the Governor

has the power to summon the Assembly, in exercise of his discretionary

powers,  specially  in  the  ongoing  exceptional  circumstances,  and  the

sensitivity of the State of Arunachal Pradesh.   

127. Even  though  we  have  not  highlighted  and  repeated  the  different

sequence of facts relied upon by the learned senior counsel, yet it may be

mentioned,  that  the  Governor  was  allegedly  in  possession  of  material

indicating  that  the  Speaker  was  under  a  serious  cloud,  and  did  not

command the confidence of the majority of the MLAs.  Additionally, there

were serious allegations of complicity between the Chief Minister and the

Speaker.   In  the  above  factual  situation,  it  was  submitted,  that  the

Governor was fully justified in not consulting the Speaker and/or the Chief

Minister (or the Council of Ministers).  It was asserted, that consulting the

Speaker was out of question, as the Speaker cannot be a judge in his own

cause.  Insofar as consultation with the Chief Minister is concerned, it was

submitted,  that  there  was  sufficient  material  before  the  Governor  to

suggest, that the Chief Minister and the Speaker were partners in an illegal

conspiracy, to subvert the democratic process in the State.  In the above

view of the matter, it was reiterated, that the Governor was fully vindicated

in having exercised his independent judgment, in not consulting the Chief

Minister.   It  was also pointed out, that the complicity between the Chief

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Minister and the Speaker stands established, from the fact that the Chief

Minister – Nabam Tuki, and the Speaker – Nabam Rebia are first cousins.

Therefore, the principle of conflict of interest/bias is clearly applicable even

in the case on hand.  In the above view of the matter, it was urged, that an

expeditious  disposal  of  the  notice  of  resolution  for  the  removal  of  the

Speaker – Nabam Rebia was fully justified, having regard to the fact that a

number of legislators forming more than 1/5th of the MLAs, had expressed

their want of confidence in the Speaker.  

128. Besides  the  submissions  noticed  hereinabove,  it  was  also  the

contention of Mr. Ashok H. Desai, learned senior counsel, that the exercise

of discretion by the Governor was final and binding.  The Court’s attention

was invited to Article 163(2) which mandates, that “…the decision of the

Governor in his discretion shall be final, and the validity of anything done

by the Governor shall not be called in question on the ground that he ought

or ought not to have acted in his discretion.”.  While it was acknowledged,

that there is no bar to judicial review, learned senior counsel was emphatic,

that judicial review was permissible only in situations where the Governor

had exercised his discretion in a wanton manner.  It was submitted, that

the exercise  of  power  by the Governor can legitimately  be placed in the

following categories. Firstly, the exercise of executive powers in consonance

with  the  provisions  of  the  Constitution,  by  or  under  the  order  of  the

Governor, wherein full judicial review is available.  Secondly, orders passed

by the Governor on the aid and advice of the Council of Ministers headed by

the Chief  Minister,  wherein also full  judicial  review is  available.  Thirdly,

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is no longer good law, for, as we have seen, both the judgments in that case held that in some cases the Governor had power to act in his  discretion  as  a  matter  of  necessary  implication.   Again,  the statement  that  the  words  “in  his  discretion”  have  the  technical meaning given to them under the G.I. Act, 35, is also not good law, for the Sup. Ct. gave those words their plain natural meaning, namely, that where the Governor acts “in his discretion” he is not obliged to follow the advice given to him by the Council of Ministers.  The Full Bench  did  not  give  weight  to  the  language  of  Art.  163(2)  which postulates  that  a  question  might  arise  whether  by  or  under  the Constitution the Governor is required to act in his discretion; and Art. 163(2) provides an answer by making the Governor the sole and final judge of that question, and by further providing that no action of the Governor shall be called in question on the ground that he ought or ought not to have acted in his discretion.  It is submitted that in view of  Art.  163(2)  the court  had no jurisdiction to  decide whether the Governor ought or ought not to act in his discretion as rightly held by the Calcutta High Court in M.P. Sharma’s Case (1968) 72 C.W.N. 328. It was unfortunate that this decision was not cited to, or considered by, the Full Bench.  Secondly, when the petition raised a question whether the Governor acted on the advice of his Chief Minister and whether  such advice  was misleading,  the  petition  raised questions which the court could not inquire into, because Art. 163(3) provides that “The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court”.

Based on the two judgments referred to hereinabove, as also, the opinion

expressed by the jurist, it was asserted, that in the facts and circumstances

of the present controversy, since it could not be concluded or inferred, that

the Governor had acted in a wanton manner, it must necessarily be held,

that there was no scope to invoke judicial review, as against the order of the

Governor  dated  9.12.2015,  as  also,  the  message  of  the  Governor  dated

9.12.2015.

The consideration and the conclusions: I .

Article 163 of the Constitution

163. “Council  of  Ministers  to  aid  and  advise  Governor.-(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions,  except  in  so  far  as  he  is  by  or  under  this

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Constitution required to exercise his functions or any of them in his discretion. (2)  If  any question arises  whether  any matter  is  or  is  not  a matter  as  respects  which  the  Governor  is  by  or  under  this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. (3)  The  question  whether  any,  and  if  so  what,  advice  was tendered by Ministers to the Governor shall not be inquired into in any court.”   

130. To demonstrate, that the order and message of the Governor dated

9.12.2015  were  well  within  the  domain  and  authority  of  the  Governor,

learned  counsel  for  the  respondents  were  emphatic  in  pointing  out,  the

distinction between Article 74 and Article 163.  It was pointed out, that in

consonance with Article 74 the Council of Ministers with the Prime Minister

as the head, is to aid and advise the President.  And that, the President is to

exercise all his functions in consonance with the advice tendered to him.  It

was highlighted, that no discretionary power whatsoever has been conferred

with  the  President,  to  enable  him to  exercise  his  functions  in  his  own

discretion.  At best, the President can require the Council of Ministers to

reconsider the advice tendered to him.  And on such reconsideration, if the

position is reiterated, the President is bound to act in consonance with the

desire of the Council of Ministers. In contrast to the above, even though

Article 163 similarly provides, that the Governor of a State is to exercise his

functions in consonance with the aid and advice tendered to him by the

Council of Ministers with the Chief Minister as the head, yet Article 163(1)

confers  discretionary  power  with  the  Governor,  when  it  is  so  expressly

mandated by or under the Constitution. There can therefore be no doubt,

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that to a limited extent, Article 163(1) authorizes the Governor to act in his

own discretion.  And in that sense, there is a clear distinction between the

power vested with the President, and the power vested with the Governor.   

131. According  to  the  respondents,  the  scope  and  ambit  of  the

discretionary power of the Governor, must necessarily be traced from Article

163(2).  It was urged, that even the simple dictionary meaning assigned to

the  language  adopted  in  Article  163(2)  would  reveal,  that  the  above

provision  allows  the  Governor  to  choose  matters  on  which  he  needs  to

exercise his own discretion.  Such choice made by the Governor, according

to learned counsel for the respondents, has been accorded finality, and is

beyond the purview of being questioned.  It was clarified, that the validity of

an action taken by the Governor in exercise of his own discretion, has been

assigned a constitutional  protection.   Inasmuch as,  the same cannot be

called in question, even by way of judicial review, on the ground whether

the Governor ought or ought not to have acted in his discretion.  Based on

the  interpretation  emerging  from  a  plain  reading  of  Article  163,  it  was

asserted on behalf of the respondents, that the order of the Governor dated

9.12.2015, as well as, his message dated 9.12.2015, were actions taken by

the Governor in his own independent discretion, under Article 163(2).  It

was  accordingly  urged,  that  the  same  enjoyed  absolute  constitutional

immunity/protection, which placed the said order and message beyond the

scope of being questioned.

132. It  was also submitted on behalf  of the respondents, that there are

judicially recognized situations, wherein the Governor can function without

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any aid and advice.  These were illustratively referred to, by adverting to

Articles 200, 239(2), 356, 371(2), 371A(1)(b), 371C(1) and 371F(g), as also,

the  power  vested  with  the  Governor  under  Paragraph  9  of  the  Sixth

Schedule.  It  was also pointed out, that contrary to the plain reading of

Article 163(1), namely, that the Governor can exercise his functions in his

own  discretion,  only  in  situations  provided  for  “by  or  under”  the

Constitution, this Court has held, that in certain situations the Governor

can still act in his own discretion (without any aid or advice), even though

the  Governor  has  not  been  so  expressly  required  to  act  in  his  own

discretion.   Insofar  as  the  situations  where  there  is  no  such  express

provision, and yet the Governor has been held to be authorized to exercise

the  same  in  his  own  discretion,  reference  was  made  to  Article  164,

whereunder the Governor is required to choose the person to be sworn as

the  Chief  Minister,  after  fresh  elections  are  held.  Similarly,  wherein  the

Government in power, appears to have lost its majority in the Legislature.

The Governor can require, the party holding the reins of Government, or the

party desirous to form Government, to demonstrate their majority by way of

a  floor  test.   Reference was also made to  situations wherein,  there is  a

conflict of interest between the Council of Ministers on the one hand, and

the issue under consideration on the other.  In such matters also,  even

though there is no express provision allowing the Governor to act in his own

discretion, this Court has repeatedly declared the right of the Governor, to

act on his own, without any aid and advice.  

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133. Based  on  the  declared  position  of  law  by  this  Court,  it  was  also

submitted on behalf of the respondents, that where constitutional issues

arise,  because  of  an  unacceptable  and  constitutionally  impermissible

conduct  of  the Government,  or  in cases of  a  disputation relating to  the

choice of the Chief Minister, or with reference to an undemocratic resolution

of  the  House,  or  on  account  of  the  democratic  process  being  otherwise

undermined, it is open to the Governor to act on his own, without any aid

and advice.  It was urged, that the individual determination of the Governor,

would  additionally  extend  to  issues,  where  propriety  required,  that  the

Governor should discharge his functions in his own discretion.   

134. Insofar  as  the  question  of  judicial  review  is  concerned,  it  was

submitted,  that  this  Court  in  the  Kesavananda  Bharati  case17  had

recognized  judicial  review,  as  a  part  of  the  ‘basic  structure’  of  the

Constitution. It was also acknowledged, that a series of judgments rendered

by this Court thereafter, have reiterated the above position.  It was however

submitted, that a challenge can only be raised under the ‘basic structure

doctrine’  to  assail  an  amended  provision  of  the  Constitution.   It  was

contended, that the aforesaid doctrine is not applicable to the provisions of

the  original  Constitution.   It  was  emphasized,  that  Article  163(2),  as  it

presently exists, is in the same format in which it was originally expressed,

by the framers of the Constitution.  It was therefore asserted, that if and

when  the  Governor  exercises  his  constitutional  functions  in  his  own

discretion,  the  same  are  protected  through  a  constitutional  immunity

(postulated through, sub-article (2) of Article 163), even from judicial review.

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In view of the above, it was contended, that this 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.

135. Even though the position expressed in the preceding paragraph is

clear and explicit, yet learned counsel representing the respondents, at his

own acceded to one exception to the proposition canvassed by him, namely,

that a determination at the hands of the Governor in his own discretion,

would  be  subject  to  judicial  review,  when  it  can  be  shown  that  the

discretion  exercised  by  the  Governor  was  not  bona  fide, or  not  on  due

consideration.  It was illustratively submitted, that the Governor’s exercise

of  discretion,  would be open to challenge,  where it  can be shown to  be

perverse,  or  capricious,  or  fallacious,  or  extraneous,  or  for  a  motivated

consideration,  and in  situations  of  the  like  nature.   Stated simply,  it  is

conceded,  that  an order passed by the Governor in  exercise  of  his  own

discretion (without any aid or advice) can be successfully assailed, if it can

be shown, that in the discretion exercised by the Governor, he had acted

wantonly, whimsically or arbitrarily.

136. The aforestated submissions at the hands of the learned counsel for

the respondents, though extremely attractive, and seemingly emerging from

a plain reading of Article 163(2), cannot be accepted.  The reasons for our

determination are being narrated in the following paragraphs.

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137. First  of  all,  it  is  extremely  essential  to  understand,  the  nature  of

powers  and  the  functions  of  the  Governor,  under  the  provisions  of  the

Constitution.  Insofar as the instant aspect of the matter is concerned, it is

apparent  that  the  Governor  has  been  assigned  functions  and  powers,

concerning  the  executive  and  the  legislative  affairs  of  the  State.   The

executive functioning of the States is provided for under Part VI Chapter II

of  the  Constitution,  which  includes  Articles  153  to  167.   Article  154

mandates, that the executive power of the State is vested with the Governor,

and is to be exercised by him either directly or through officers subordinate

to him “in accordance with this Constitution”.  Article 163 further warrants,

that the Governor would exercise his functions, on the aid and advice of the

Council of Ministers with the Chief Minister as the head.  The above edict is

not applicable, in situations where the Governor is expressly required to

exercise  his  functions,  “…by  or  under  this  Constitution…”,  “…  in  his

discretion...”.  The question that will need determination at our hands is,

whether  the  underlying  cardinal  principle,  with  reference  to  the

discretionary power of the Governor, is to be traced from Article 163(1) or

from Article 163(2).  Whilst it was the contention of the learned counsel for

the appellants, that the same is expressed in sub-article (1) of Article 163,

the contention on behalf of the respondents was, that the amplitude of the

discretionary power of the Governor is evinced and manifested in sub-article

(2) of Article 163.  Undoubtedly, all executive actions of the Government of a

State are expressed in the name of the Governor, under Article 166.  That,

however, does not per se add to the functions and powers of the Governor.

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It  is  also  necessary  to  appreciate,  that  in  the  discharge  of  executive

functions,  the  Governor  of  a  State  has  the  power  to  grant  pardons,

reprieves, respites or remissions of punishments or to suspend, remit or

commute  sentences  (under  Article  161).   The  Governor’s  power  under

Article 161, is undisputedly exercised on the aid and advice of the Chief

Minister and his Council of Ministers.  The Governor has power to frame

rules  for  the  convenient  transaction  of  executive  business  of  the

Government,  under  Article  166.   The  instant  responsibility  is  also

discharged, on aid and advice.  All in all, it is apparent, that the Governor is

not assigned any significant role in the executive functioning of the State.

We would also endeavour to examine the duties and responsibilities of the

Governor in the legislative functioning of a State.  Details with reference to

the same are found incorporated in Part VI Chapter III of the Constitution,

which includes Articles 168 to 212.  Even though Article 168 postulates,

that  the  legislature  of  a  State  would  comprise  of  the  Governor,  yet  the

Governor is not assigned any legislative responsibility in any House(s) of the

State Legislature, irrespective of whether it is the legislative process relating

to Ordinary Bills or Money Bills.  Article 158 (dealing with the conditions of

the Governor’s office) provides, that the “… Governor shall not be a member

of either House of Parliament or of a House of the Legislature of any State

specified  in  the  First  Schedule  …”.  Insofar  as  the  legislative  process  is

concerned, the only function vested with the Governor is expressed through

Article  200  which  inter  alia provides,  that  a  Bill  passed  by  the  State

Legislature,  is  to  be  presented to  the  Governor  for  his  assent.   And its

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ancillary provision, namely, Article 201 wherein a Bill passed by the State

Legislature and presented to the Governor, may be reserved by the Governor

for  consideration  by  the  President.   The  only  exception  to  the

non-participation  of  the  Governor  in  legislative  functions,  is  postulated

under Article  213 (contained in Part  VI  Chapter  IV of  the Constitution),

which  apparently  vests  with  the  Governor,  some legislative  power.   The

Governor under Article 213 can promulgate Ordinances, during the period

when the House(s)  of  the State  Legislature,  is/are  not  in  session.   This

function is exercised by the Governor, undisputedly, on the aid and advice

of  the  Council  of  Ministers  with  the  Chief  Minister  as  the  head.   The

Governor  is  also  required  to  summon  the  House  or  Houses  of  State

Legislature, or to prorogue or dissolve them under Article 174.  We shall

exclusively  deal  with  the  connotations  of  the  instant  responsibility

entrusted with  the  Governor,  immediately  after  drawing  our conclusions

with reference to Article 163. Articles 178 to 187 deal with the officers of the

State Legislature, including the Speaker and the Deputy Speaker, as well

as, the secretariat of the State Legislature.  The above Articles are on the

subject of appointment and removal of the Speaker and the Deputy Speaker

of the Legislative Assembly, as also, the Chairman and Deputy Chairman of

the Legislative Council, as well as, other ancillary matters.  Whilst Article

179 provides for vacation, resignation and removal of the Speaker (and the

Deputy  Speaker)  of  the  Legislative  Assembly.   Article  183  provides  for

vacation,  resignation  and  removal  of  the  Chairman  (and  the  Deputy

Chairman) of the Legislative Council.  In neither of the above Articles, the

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Governor has any assigned role.  The only responsibility allocated to the

Governor under Article 208, is of making rules as to the procedure with

respect to communications between the two Houses of State Legislature.  All

in all, it is apparent, that the Governor is not assigned any significant role

even in the legislative functioning of the State.  

138. The above position, leaves no room for any doubt, that the Governor

cannot be seen to have such powers and functions, as would assign to him

a dominating position, over the State executive and the State legislature.

The interpretation placed on Article 163(2), on behalf of the respondents,

has just that effect, because of the following contentions advanced on behalf

of  the  respondents.   Firstly,  whenever  a  question  arises,  whether  in

discharging a particular function, the Governor can or cannot act in his

own  discretion.   According  to  the  respondents,  the  discretion  of  the

Governor, on the above question, is final.   Secondly,  since the provision

itself postulates, that “ … the decision of the Governor in his discretion shall

be final,  and the validity of anything done by the Governor shall  not be

called in question on the ground that he ought or ought not to have acted in

his  discretion…”,  according  to  the  respondents,  makes  the  Governor’s

orders based on his own discretion, immune from judicial review.  Accepting

the  above  position,  will  convert  the  Governor  into  an  all-pervading

super-constitutional authority.  This position is not acceptable because an

examination of the executive and legislative functions of the Governor, from

the surrounding provisions of the Constitution clearly brings out, that the

Governor has not been assigned any significant role either in the executive

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or the legislative functioning of the State.  The position adopted on behalf of

the appellants, on the other hand, augurs well in an overall harmonious

construction  of  the  provisions  of  the  Constitution.   Even  on  a  cursory

examination of the relevant provisions of the Constitution, we are inclined

to accept the contention advanced on behalf of the appellants.  

139. In our considered view, a clear answer to the query raised above, can

inter alia emerge from the Constituent Assembly debates with reference to

draft Article 143, which eventually came to be renumbered as Article 163 in

the Constitution.   It  would  be  relevant  to  record,  that  from the queries

raised by H.V.  Kamath, T.T.  Krishnamachari,  Alladi Krishnaswami Ayyar,

and  from  the  response  to  the  same  by  Dr.  B.R.  Ambedkar,  it  clearly

emerges, that the general principle with reference to the scope and extent of

the  discretionary  power  of  the  Governor,  is  provided  for  through Article

163(1).  It also becomes apparent from Article 163(1), which provides for the

principle of ministerial responsibility.  The crucial position that gets clarified

from a perusal of the Constituent Assembly debates, arises from the answer

to the query, whether the Governor should have any discretionary power at

all?  The debates expound, that the retention of discretionary power with

the Governor was not,  in any way, contrary to the power of  responsible

Government,  nor should the same be assumed as a power akin to  that

vested with a Governor under the Government of India Act, 1935.  And from

that,  emerges the answer that the retention and vesting of  discretionary

powers  with  the  Governor,  should  not  be  taken  in  the  sense  of  being

contrary  to,  or  having  the  effect  of  negating,  the  powers  of  responsible

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Government.  Significantly, with reference to the Governor’s discretionary

powers, it was emphasized by Dr. B.R. Ambedkar, that “the clause is a very

limited  clause;  it  says:  ‘except  insofar  as  he  is  by  or  under  this

Constitution’.   Therefore, Article  163 will  have to be read in conjunction

with  such  other  Articles  which  specifically  reserve  the  powers  to  the

Governor”.   “It  is  not  a  general  clause  giving  the  Governor  power  to

disregard the advice of his Ministers, in any matter in which he finds he

ought to disregard.  There, I think, lies the fallacy of the argument of my

Hon’ble  friend…”.   In  our  considered  view,  the  Constituent  Assembly

debates, leave no room for any doubt, that the framers of the Constitution

desired to embody the general and basic principle, describing the extent and

scope of the discretionary power of the Governor, in sub-article (1) of Article

163, and not in sub-article (2) thereof, as suggested by the learned counsel

for the respondents.

140. Insofar as the instant issue is concerned, reference may also be made

to the Justice Sarkaria Commission report on “Centre – State Relations”

and  the  Justice  M.M.  Punchhi  Commission  report  on  “Constitutional

Governance and Management of Centre – State Relations”.  The conclusions

drawn in both the above reports are clear and explicit.  In paragraph 4.1.03

of the Justice M.M. Punchhi Commission report,  the observations of  Dr.

B.R.  Ambedkar  have  been  highlighted  to  the  effect,  that  insofar  as  the

constitutional role of the Governor is concerned, “…..the Governor under

the Constitution has no function which he can discharge by himself;  no

functions  at  all.  While  he  has  no  functions,  he  has  certain  duties  to

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perform,  and  I  think  the  House  will  do  well  to  bear  in  mind  this

distinction.”.  “..…This Article, nowhere, either in clause (a) or clause (b) or

clause  (c),  says  that  the  Governor  in  any particular  circumstances  may

overrule the Ministry. Therefore, the criticism that has been made that this

Article somehow enables the Governor to interfere or to upset the decision

of the Cabinet is entirely beside the point, and completely mistaken.”  And

thereafter, in paragraph 4.2.14 of the Justice M.M. Punchhi Commission

report, it is observed as under:

“4.2.14  In a very limited field, however, the Governor may exercise certain functions in his discretion, as provided in Article 163(1). The first part of Article 163(1) requires the Governor to act on the advice of  his Council  of  Ministers.  There is,  however,  an exception in the latter part of the clause in regard to matters where he is by or under the Constitution required to function in his discretion. The expression "required" signifies that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been held that the expression "by or under the Constitution" means that the necessity  to  exercise such powers may arise from any express provision of the Constitution or by necessary implication. We would like to add that such necessity may also arise from rules and orders made "under" the Constitution." 4.2.15  Thus,  the scope of  discretionary powers as provided in the exception  in  clause  (1)  and  in  clause  (2)  of  Article  163  has  been limited by the clear language of the two clauses. It  is  an accepted principle that in a parliamentary democracy with a responsible form of government, the powers of the Governor as Constitutional or formal head  of  the  State  should  not  be  enlarged  at  the  cost  of  the  real executive,  viz.  the Council  of  Ministers.  The scope of  discretionary powers  has  to  be  strictly  construed,  effectively  dispelling  the apprehension,  if  any,  that  the  area  for  the  exercise  of  discretion covers all  or any of  the functions to be exercised by the Governor under the Constitution. In other words, Article 163 does not give the Governor a general discretionary power to act against or without the advice of his Council  of Ministers.  The area for the exercise of his discretion  is  limited.  Even  this  limited  area,  his  choice  of  action should not be arbitrary or fanciful. It must be a choice dictated by reason, actuated by good faith and tempered by caution.”

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The  important  observations  in  the  Justice  M.M.  Punchhi  Commission

report, with reference to Article 163(2), are contained in paragraph 4.3.03.

Relevant extract of the same is reproduced below:

“  Article  163(2)  gives  an impression that  the  Governor  has a  wide, undefined  area  of  discretionary  powers  even  outside  situations  an impression needs to be dispelled. The Commission is of the view that the  scope  of  discretionary  powers  under  Article  163(2)  has  to  be narrowly  construed,  effectively  dispelling  the  apprehension,  if  any, that the so-called discretionary powers extends to all  the functions that the Governor is empowered under the Constitution. Article 163 does  not  give  the  Governor  a  general  discretionary  power  to  act against or without the advice of his Council of Ministers. In fact, the area for the exercise of discretion is limited and even in this limited area, his choice of action should not be nor appear to be arbitrary or fanciful.  It  must be a choice dictated by reason, activated by good faith and tempered by caution.  The Governor's discretionary powers are the following: to give assent or withhold or refer a Bill for Presidential assent under Article 200; the appointment of the Chief Minister under Article 164; dismissal of a Government which has lost confidence but refuses to quit, since the Chief  Minister  holds  office  during  the  pleasure  of  the  Governor; dissolution of the House under Article 174; Governor's report under Article 356; Governor's responsibility for certain regions under Article 371-A, 371-C, 371-E, 371-H etc. These aspects are now considered below: …”

We are of  the considered view,  that the inferences drawn in the Justice

M.M. Punchhi Commission report extracted hereinabove, are in consonance

with the scheme of the functions and powers assigned to the Governor, with

reference to the executive and legislative functioning of the State, and more

particularly with reference to the interpretation of Article 163.  We endorse

and  adopt  the  same,  as  a  correct  expression  of  the  constitutional

interpretation, with reference to the issue under consideration.   

141. Though  the  debate  could  be  endless,  yet  we  would  consider  it

apposite to advert to the decisions rendered by this Court in the Sardari Lal

case2 and the Samsher Singh case1.   Insofar as the Sardari Lal case2 is

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concerned, this Court had held therein, that the President or the Governor,

as the case may be, would pass an order only on his personal satisfaction.

In  the  above case,  this  Court  while  examining  the  case  of  an employee

under Article 311(2) (more particularly, under proviso (c) thereof), recorded

its conclusions, in the manner expressed above.  The same issue was placed

before a seven-Judge Bench constituted to re-examine the position adopted

in the Sardari Lal case2.  The position came to be reversed.  This Court in

the Samsher Singh case1 declared, that wherever the Constitution required

the satisfaction of the President or the Governor, for the exercise of any

power or  function,  as for example under Articles  123, 213,  311(2),  317,

352(1), 356 and 360, the satisfaction required by the Constitution was not

the personal satisfaction of the President or the Governor. “… but is the

satisfaction of the President or of the Governor in the constitutional sense

under the Cabinet system of Government …”.  It is therefore clear, that even

though the Governor may be authorized to exercise some functions, under

different  provisions  of  the  Constitution,  the  same  are  required  to  be

exercised only on the basis of the aid and advice tendered to him under

Article 163, unless the Governor has been expressly authorized, by or under

a constitutional provision, to discharge the concerned function, in his own

discretion.   

142. We are therefore of the considered view, that insofar as the exercise of

discretionary powers vested with the Governor is concerned, the same is

limited  to  situations,  wherein  a  constitutional  provision  expressly  so

provides, that the Governor should act in his own discretion.  Additionally,

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a Governor can exercise his functions in his own discretion, in situations

where an interpretation of the concerned constitutional provision, could not

be  construed  otherwise.   We  therefore  hereby  reject  the  contention

advanced on behalf of the respondents, that the Governor has the freedom

to determine when and in which situation, he should take a decision in his

own discretion, without the aid and advice of the Chief Minister and his

Council of Ministers.  We accordingly, also turn down the contention, that

whenever the Governor in the discharge of his functions, takes a decision in

his own discretion, the same would be final and binding, and beyond the

purview of judicial review.  We are of the view, that finality expressed in

Article 163(2) would apply to functions exercised by the Governor in his own

discretion, as are permissible within the framework of Article 163(1), and

additionally, in situations where the clear intent underlying a constitutional

provision, so requires i.e., where the exercise of such power on the aid and

advice,  would  run  contrary  to  the  constitutional  scheme,  or  would  be

contradictory in terms.  

143. We may therefore summarise our conclusions as under:

Firstly, the measure of discretionary power of the Governor, is limited to the

scope postulated therefor, under Article 163(1).

Secondly,  under  Article  163(1)  the  discretionary  power  of  the  Governor

extends to situations, wherein a constitutional provision expressly requires

the Governor to act in his own discretion.

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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.

Fifthly,  the submission advanced on behalf  of  the respondents,  that the

exercise of discretion under Article 163(2) is final and beyond the scope of

judicial review cannot be accepted.  Firstly, because we have rejected the

submission  advanced  by  the  respondents,  that  the  scope  and  extent  of

discretion  vested  with  the  Governor  has  to  be  ascertained  from  Article

163(2), on the basis whereof the submission was canvassed.  And secondly,

any  discretion  exercised  beyond  the  Governor’s  jurisdictional  authority,

would certainly be subject to judicial review.

Sixthly, in view of the conclusion drawn at Fifthly above, the judgments

rendered in the Mahabir Prasad Sharma case20, and the Pratapsing Raojirao

Rane case12, by the High Courts of Calcutta and Bombay, respectively, do

not lay down the correct legal position.  The constitutional position declared

therein, with reference to Article 163(2), is accordingly hereby set aside.

144. The conclusions recorded hereinabove will constitute the foundational

basis  for  determining some of  the other important  issues,  that arise for

consideration in the present controversy.   

II.  Article 174 of the Constitution

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174. “Sessions  of  the  State  Legislature,  prorogation  and dissolution – (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its  last  sitting in one session and the date appointed for its first sitting in the next session. (2)The Governor may from time to time –

(a)prorogue the House or either House; (b)dissolve the Legislative Assembly.”

145. A forceful and determined contention was advanced by the learned

counsel for the respondents, that the process of summoning the Assembly

can  never  be  considered  as  anti-democratic.   It  was  asserted,  that  the

summoning a Legislature,  can only further the democratic process, as it

opens the House for carrying out legislative activity.  As against the above, it

was pointed out,  that when the Assembly is prorogued or dissolved, the

democratic/legislative processes are placed in suspended animation.  An

action which prorogues or dissolves the Legislature, according to learned

counsel,  can  be  taken  to  be  actions whereby  the  democratic/legislative

process is either temporarily stalled, or brought to an end.  According to

learned counsel for the respondents, there can therefore be no justification,

to find fault with the order of the Governor dated 9.12.2015, or with his

message dated 9.12.2015, by which the summoning of the 6th session of

the Assembly, was preponed from 14.1.2016 to 16.12.2015, and thereby the

democratic/legislative process was brought into active animation, from a

date earlier than originally determined.

146. Adverting to the plain reading of Article 174, it was submitted, that

the Governor has not only been vested with the authority to summon the

House, but has also been vested with the authority to determine, at which

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venue  and  at  what  time,  the  House  should  be  summoned.   For  this,

reference was made to the words “as he thinks fit” in Article 174(1), which

signify  and imply,  that  the  Governor,  would  exercise  his  discretion  and

power to summon the Assembly, on his own, and without any aid or 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.

147. In connection with the interpretation of Article 174(1) which pertains

to the power of the Governor, to summon the House, it was urged, that the

words “as he thinks fit” satisfy the requirement of Article 163(1), inasmuch

as it fulfills the constitutional stipulation, that the Governor would exercise

functions in his discretion, which he is expressly required, “by or under” the

Constitution, to exercise on his own.  It was therefore asserted, that it being

clearly  and  expressly  mandated  under  Article  174(1)  itself,  that  the

Governor  could  summon  the  State  Legislature  “as  he  thinks  fit”  the

requirement of Article 163(1) stands satisfied.

148. Yet  again,  the  contention  advanced  at  the  hands  of  the  learned

counsel for the respondents, at first blush seems to be most acceptable.

But, the Constituent Assembly debates in connection with Article 174, the

historical background depicting the manner in which Article 174 came to be

drafted, and treatises on the issue, clearly lead to the conclusion, that the

submission advanced at the behest of the respondents, cannot be accepted.

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We shall hereinafter, detail our reasons, for not accepting the respondents’

contention.

149. It would be relevant to mention, that draft Article 153 eventually came

to be renumbered as Article 174 of the Constitution.  draft Article 153 has

been extracted in paragraph xxx 48 xxx,  above.   A perusal  of  the draft

Article 153(2) would reveal, that the same through the words “as he thinks

fit”,  vested discretion with the Governor to choose the time and place at

which the House(s)  were to be summoned.  The above words have been

retained in Article  174.  The retention of  the said words, would lean in

favour  of  the  submission  canvassed  on  behalf  of  the  respondents.  It  is

however relevant to notice, that the power to summon the House or Houses

of  the  State  Legislature  was  postulated  under  draft  Article  153(2)(a),

whereas the power to prorogue and dissolve the House or Houses of the

State  Legislature  was  expressed  in  draft  Articles  153(2)(b)  and  (c)

respectively.  The most significant feature of draft Article 153 was expressed

in sub-article (3) thereof, wherein it was provided, that the functions of the

Governor with reference to sub-clauses (a) and (c),  namely, the power to

summon and dissolve the House or Houses of the State Legislature “… shall

be exercised by him in his discretion.”  The words used in sub-article (3) of

draft  Article  153,  were  in  consonance  with  the  requirements  postulated

under Article 163(1).  Needless to mention, that under Article 163(1), the

Governor can exercise only such functions in his own discretion which he is

expressly  required,  by  or  under  the  Constitution,  to  exercise  in  his

discretion. The manner in which draft Article 153(3) was originally drawn,

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would have left no room for any doubt, that the Governor would definitely

have had the discretion to summon or dissolve the House or Houses of the

State Legislature, without any aid or advice.  After the debate, draft Article

153  came  to  be  renumbered  as  Article  174.   Article  174  reveals,  that

sub-article (3) contained in draft Article 153 was omitted.  The omission of

sub-article (3) of draft Article 153, is a matter of extreme significance, for a

purposeful  confirmation  of  the  correct  intent  underlying  the  drafting  of

Article 174. The only legitimate and rightful inference, that can be drawn in

the  final  analysis  is,  that  the  framers  of  the  Constitution  altered  their

original contemplation, and consciously decided not to vest discretion with

the Governor, in the matter of summoning and dissolving the House, or

Houses  of  the  State  Legislature,  by  omitting  sub-article  (3),  which

authorized the Governor to summon or dissolve, the House or Houses of

Legislature at his own, by engaging the words “… shall be exercised by him

in  his  discretion…”.   In  such  view  of  the  matter,  we  are  satisfied  in

concluding,  that  the  Governor  can  summon,  prorogue  and  dissolve  the

House, only on the aid and advice of the Council of Ministers with the Chief

Minister as the head.  And not at his own.

150. The historical reason relevant for the present determination, emerges

from the fact,  that 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

enures under Article 156, during the pleasure of the President.  A Governor

is an executive nominee, and his appointment flows from the aid and advice

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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.  In  our  considered  view,  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.   Specially  so,  because  the  Constitution  is  founded  on  the

principle of ministerial  responsibility.   The acceptance of the submission

advanced on behalf of the respondents, would obviously negate the concept

of  responsible  Government.   Summoning of  the Legislature,  initiates  the

commencement  of  the  legislative  process;  prorogation  of  the  Legislature

temporarily  defers  the  legislative  process; and  the  dissolution  of  the

Legislature brings to an end, the legislative process.  In the absence of any

legislative responsibility, acceptance of the contention advanced on behalf of

the respondents, would seriously interfere with the responsibility entrusted

to  the  popular  Government,  which  operates  through  the  Council  of

Ministers with the Chief Minister as the head.  It is for the instant reasons

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also,  that  the  submission  advanced  on  behalf  of  the  respondents,  with

reference to the interpretation of Article 174, does not merit acceptance.

151. For an insight into Article 174, reference may also be made to the

observations  recorded  in  the  Justice  Sarkaria  Commission  report  on

“Centre  –  State  Relations”,  and  the  Justice  M.M.  Punchhi  Commission

report on “Constitutional Governance and Management of Centre – State

Relations”.   With  reference  to  Article  174,  the  Justice  M.M.  Punchhi

Commission report makes the following remarks:

“4.5.04  Summoning,  proroguing  and  dissolution  of  the  legislative assembly  Article 174 of the Constitution empowers the Governor to summon, prorogue or dissolve the House. It is a well-recognised principle that, so  long  as  the  Council  of  Ministers  enjoys  the  confidence  of  the Assembly,  its  advice  in  these  matters,  unless  patently unconstitutional must be deemed as binding on the Governor. It is only where such advice, if acted upon, would lead to an infringement of a constitutional provision, or where the Council of Ministers has ceased to  enjoy  the  confidence of  the  Assembly,  that  the  question arises whether the Governor may act in the exercise of his discretion. The Sarkaria  Commission recommended that,  if  the Chief  Minister neglects  or  refuses  to  summon the  Assembly  for  holding  a  "Floor Test", the Governor should summon the Assembly for the purpose. As regards  proroguing  a  House  of  Legislature,  the  Governor  should normally act on the advice of the Chief Minister. But where the latter advises prorogation when a notice of  no-confidence motion against the Ministry is pending, the Governor should not straightaway accept the advice.  If  he finds that  the  no-confidence motion represents  a legitimate challenge from the Opposition, he should advice the Chief Minister  to  postpone  prorogation  and  face  the  motion.  As  far  as dissolution of the House is concerned, the Governor is bound by the decision taken by the Chief Minister who has majority. However, if the advice is rendered by a Chief Minister who doesn't have majority, then the Governor can try to see if an alternate government can be formed and only if  that isn't possible, should the house be dissolved. This Commission  reiterates  the  recommendations  of  the  Sarkaria Commission in this regard.”

The extract of the report reproduced above, makes it abundantly clear, that

as long as the Council of Ministers enjoys the confidence of the House, the

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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.  We  find  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.  We endorse and adopt the

same, as a correct expression of the constitutional interpretation, insofar as

the present issue is concerned.   

152. In addition to the above, reference may also be made to the treatise by

M.N Kaul and S.L. Shakdher – “Practice and Procedure of Parliament” (5th

Edition) published by the Lok Sabha Secretariat.  In the above text, Chapter

IX  bears  the  heading  –  “Summoning,  Prorogation  of  the  Houses  of

Parliament and the Dissolution of the Lok Sabha”.  Relevant portion of the

above chapter, has been extracted in paragraph xxx 47 xxx, above.  The

same clearly expresses the view of the authors, that the Governor would

summon or prorogue the House or Houses of the State Legislature, on the

aid and advice of the Chief Minister.  The narration by the authors reveals,

that it  would be open to the Governor to suggest an alternative date for

summoning or proroguing the House or Houses of the State Legislature, but

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the final determination on the above issue rests with the Chief Minister or

the Cabinet, which may decide to accept or not to accept, the alternate date

suggested by the Governor.  The opinion of M.N Kaul and S.L. Shakdher is

in consonance with the Constituent Assembly debates.  The position only

gets altered, when the Government in power loses its majority in the House.

With reference to prorogation, the opinion expressed by the authors is, that

the same is also to be determined by the Council of Ministers with the Chief

Minister  as  the  head,  except  in  a  situation  wherein  the  Government’s

majority in the House, is under challenge.  From the above exposition it

emerges, that the Chief Minister and his Council of Ministers  lose their

right to aid and advise the Governor, to summon or prorogue or dissolve the

House, when the issue of the Government’s support by a majority of the

members  of  the  House,  has  been  rendered  debatable.   We  have  no

hesitation in endorsing the above view.  But, what is of significance and

importance in the opinion expressed by M.N Kaul and S.L. Shakdher, which

needs to be highlighted is, that the mere fact that some members of the

ruling party have defected, does not necessarily prove that the party has

lost  confidence of  the House.  And in such a situation,  if  there is  a no

confidence motion  against  the  Chief  Minister,  who instead of  facing  the

Assembly, advises the Governor to prorogue or dissolve the Assembly, the

Governor need not accept such advice.  In the above situation, the Governor

would be well within his right, to ask the Chief Minister to get the verdict of

the Assembly, on the no confidence motion.  The above authors also express

the view, that if the Chief Minister recommends dissolution of the Assembly,

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when the budget has not been voted, whilst the Ministry claims majority

support, the Ministry in such a situation should face the Assembly and get

the  budget  passed,  before  seeking  dissolution  for  whatever  reasons.

However, where there is reason to believe, that the Government in power no

longer enjoys majority support, it is open to the Governor, to take steps to

determine the issue of majority by a floor test.  And in case the Government

in  power  fails  to  succeed  in  the  same,  to  take  steps  to  ascertain  the

possibility  of  installing  another  Government,  which  is  in  a  position  to

command majority support, so as to get the budget passed.  Not taking the

aforesaid course, would lead to a financial impasse, in which situation, it

would be open to the Governor, to move the President under Articles 356 or

360.   In  the  instant  situation  also,  M.N  Kaul  and  S.L.  Shakdher  have

opined, that it would be open to the Governor to act at his own, without any

aid and advice of the Council of Ministers headed by the Chief Minister.

Neither  of  the  aforesaid  two  situations  emerge  in  the  facts  and

circumstances of the present case.

153. In view of the consideration recorded hereinabove, we are of the view,

that in ordinary circumstances during the period when the Chief Minister

and his Council  of  Ministers enjoy the confidence of  the majority of  the

House, the power vested with the Governor under Article 174, to summon,

prorogue and dissolve the House(s) must be exercised in consonance with

the aid and advice of the Chief Minister and his Council of Ministers.  In the

above situation, he is precluded to take an individual call on the issue at

his own will, or in his own discretion.  In a situation where the Governor

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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.

154. Since it is not a matter of dispute, that the Governor never called for a

floor test, it is reasonable for us to infer, that the Governor did not ever

entertain any doubt, that the Chief Minister and his Council of Ministers

were still enjoying the confidence of the majority, in the House. Nor was a

motion  of  no  confidence  moved  against  the  Government.   In  the  above

situation, the Governor just could not have summoned the House, vide his

order dated 9.12.2015, in his own discretion, by preponing the 6th session

of the Legislative Assembly from 14.1.2016 to 16.12.2015.  This, for the

simple reason, that the Governor neither had the jurisdiction nor the power

to do so, without the aid and advice of the Council of Ministers with the

Chief Minister as the head.

III. Article 175 of the Constitution

175. “Right of Governor to address and send messages to the House  or  Houses  –  (1)  The  Governor  may  address  the Legislative  Assembly  or,  in  the  case  of  a  State  having  a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members.  (2) The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect of a Bill then pending in the Legislature or otherwise, and a House to which

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any  message  is  so  sent  shall  with  all  convenient  despatch consider any matter required by the message to be taken into consideration.”

155. On the ambit and scope of messages which can be addressed by the

Governor to the House or Houses of State Legislatures under Article 175, it

was submitted on behalf of the respondents, that the same can be with

respect to “… a Bill then pending in the Legislature or otherwise”.  Based on

the use of the above expression in Article 175(2), it was asserted on behalf

of the respondents, that the text of the message need not necessarily be

limited to a Bill then pending before the Legislature.  It was submitted, that

a message can extend to additional and ancillary issues, as was apparent

from the words “or otherwise” used in conjunction with the words “with

respect to a Bill then pending in the Legislature”.  It was also sought to be

clarified, that the power vested with the Governor to address a message to

the House or Houses of the State Legislature, should not be confused with

the power vested with the Governor under Article 200, which authorizes the

Governor inter alia to accord his assent to a Bill, or to return a Bill (if it is

not a Money Bill) together with a message requesting the House or Houses

of the State Legislature to reconsider the Bill,  or any specified provisions

thereof, and/or the desirability of introducing such amendments in the Bill,

as the Governor may recommend in his message.  It was submitted, that

the power exercised by the Governor under Article  200, relates to a Bill

passed by the State Legislature, whereas the message referred to in Article

175,  is  expressly  relatable  to  a  Bill  then  pending  before  the  State

Legislature.  It was pointed out, that the use of the words “or otherwise” in

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Article 175(2) has the consequence of extending and enlarging the subject

and context on which a message can be addressed by the Governor, to the

State Legislature.

156. It  was  further  submitted  on  behalf  of  the  respondents,  that  the

message of the Governor dated 9.12.2015 (which has been impugned by the

appellants  before  this  Court),  contained  three  directions.   Firstly,  the

Assembly  should  not  be  adjourned,  till  the  notice  of  resolution  for  the

removal  of  the  Speaker  –  Nabam  Rebia  dated  19.11.2015,  was  finally

determined, one way or the other.  Secondly, the notice of resolution for the

removal  of  the  Speaker  –  Nabam  Rebia,  should  be  taken  up  for

consideration  in  the  list  of  business  of  the  Assembly,  before  any  other

business of the day is taken up.  And thirdly, until the 6th session of the

Assembly was prorogued, the Presiding Officer “shall” not alter the party

composition  in  the  House.   Insofar  as  the  directions  contained  in  the

impugned message dated 9.12.2015 are concerned, it was asserted, that the

same merely brought to the notice of the members of the Assembly, the

provisions of the Constitution, supplemented by the ‘Conduct of Business

Rules’, to ensure that the functioning of the House, in a situation of turmoil

and turbulence,  was carried out  in  consonance with  established norms.

Insofar as the first direction is concerned, reference was made to Rule 151

of the ‘Conduct of Business Rules’, which provides, that after a notice of

resolution for the removal of a Speaker is tabled, the House shall not be

adjourned till  the motion of  no confidence has been finally  disposed of.

Insofar as the second direction is concerned, it was pointed out, that the

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same is  postulated  under  Rule  153 of  the  ‘Conduct  of  Business  Rules’,

which provides, that a notice of resolution for the removal of the Speaker

would be included in the list of business, before any other business of the

day is taken up.  And insofar as the third direction is concerned, reference

was made to Article 179(c), which provides that a Speaker may be removed

from his office by a resolution of the Assembly “… passed by a majority of

all  the  then members  of  the  Assembly”.   It  was therefore 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 accordingly

asserted, that the impugned message dated 9.12.2015 should be viewed as

advice and guidance, tendered by the Governor to the Assembly, so as to

preserve recognized constitutional norms.

157. Based on the assertions recorded hereinabove, it was submitted on

behalf of the respondents, that save and except, the ultimate desire of the

Governor to preserve the democratic process, the impugned message dated

9.12.2015, had no other fallout/consequence, nor was the same aimed at a

gain or loss, for one or the other political party.  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

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constituted  a  serious  constitutional  impropriety.   In  conclusion,  it  was

submitted, that the message dated 9.12.2015, should be taken as  a bona

fide gesture at the hands of the Governor, to require the Assembly to carry

out  its  functions,  in  the  peculiar  circumstances which prevailed  at  that

juncture, in accordance with the provisions of the Constitution.  It was also

pointed  out,  that  the  message  dated  9.12.2015  was  addressed  by  the

Governor,  by  taking  note  of  the  actions  of  the  Speaker,  who  was

manipulating the situation, so as to defer consideration on the notice of

resolution, for his own removal.

158. We must yet again acknowledge, that the submissions advanced at

the behest of the respondents, emerge from common sense, rationale and

acceptable logic.  The question which arises for our consideration, however

is, whether a message addressed by the Governor, could extend to subjects

on which the above message dated 9.12.2015 was addressed.  And also

whether, the Governor could address a message to the Assembly in his own

discretion, without seeking the aid and advice of the Chief Minister and his

Council  of  Ministers.   Having  given  our  thoughtful  consideration  to  the

above,  it  is  not  possible  for  us  to  accept  the  submissions  advanced  on

behalf  of  the  respondents.   Our  reasons  for  not  agreeing  with  the

respondents are recorded hereinafter.

159. It is not disputed, that Section 63 of the Government of India Act,

1935 was a precursor to Article 175.  Section 63 aforementioned has been

extracted in paragraph xxx 50 xxx, herein above.  A perusal of Section 63 of

the Government of India Act, 1935, reveals that sub-section (2) thereof had

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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.  It must have been for the above reason, that the Constituent

Assembly  framed  Article  175,  by  excluding  and  omitting  the  discretion

which was vested with the Governor, in the matter of sending messages,

under  the  Government  of  India  Act,  1935.   Had  it  been  otherwise,  the

phrase  “in  his  discretion”  would  have  been  retained  by  the  Constituent

Assembly  in  Article  175.   It  was  also  the  contention  on  behalf  of  the

appellants,  that  the  messages  addressed  by  the  Governor  should  be

construed by accepting, that the Governor is in no manner associated with

the legislative process, except under Article 200.  A detailed consideration in

this behalf has already been recorded hereinabove. In our considered view,

the Governor’s connectivity to the House in the matter of sending messages,

must be deemed to be limited to the extent considered appropriate by the

Council of Ministers headed by the Chief Minister.  In fact, it is not possible

for  us  to  conclude  otherwise,  because  Article  175  does  not  expressly

provide, in consonance with Article 163(1), that the Governor would exercise

his above functions “in his discretion”.  Thus viewed, we have no hesitation

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in concluding, that messages addressed by the Governor to the House(s)

have to be in consonance with the aid and advice tendered to him.

160. During  the  course  of  hearing  it  emerged,  that  one  of  the  primary

reasons for addressing the message dated 9.12.2015, was the fact, that a

notice of resolution for the removal of the Speaker – Nabam Rebia, dated

19.11.2015, was addressed by 13 MLAs (-11 belonging to the BJP, and 2

Independent  MLAs),  to  the  Secretary  of  the  Legislative  Assembly.

Accordingly, in the understanding of the Governor, it  would constitute a

constitutional impropriety, if the above notice of resolution for the removal

of  the  Speaker,  was  not  taken  up  for  consideration  forthwith,  namely,

immediately after the expiry of  14 days, provided for in the first proviso

under Article 179.  Insofar as the instant aspect of the matter is concerned,

whilst  we  do  not  doubt  the  bona  fides of  the  Governor,  it  cannot  be

overlooked that the Governor has no express or implied role under Article

179 on the subject of “the removal of Speaker or Deputy Speaker”.  The

aforesaid  issue of  removal  of  the  Speaker  (or  Deputy  Speaker),  squarely

rests under the jurisdictional authority of the Members of the Legislative

Assembly,  who  must  determine  at  their  own,  whether  the  notice  of

resolution for the removal of the Speaker (or the Deputy Speaker) should be

adopted or rejected.  In the instant view of the matter, the participatory role

at the hands of the Governor, in the matter concerning the removal of the

Speaker,  can  neither  be  understood  nor  accepted,  and  may  well  be

considered as unwarranted.

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161. Another  important  reason,  for  addressing  the  message  dated

9.12.2015 to the House was, that a petition had been preferred by the Chief

Whip of the Congress Legislature Party – Rajesh Tacho on 7.12.2015, for

disqualification of 14 MLAs belonging to the INC, under the Tenth Schedule.

It  was  therefore,  that  the  Governor  in  his  message  dated  9.12.2015,

ventured  to  inform the  Presiding  Officer  of  the  House,  that  till  the  6th

session of the Assembly was prorogued, the party composition of the House

“shall” not be altered. Once again, for exactly the same reasons, as recorded

in  the  preceding  paragraph,  it  is  imperative  for  us  to  express,  that  the

Governor has no role, in the disqualification of members of the Assembly.

The exclusive jurisdiction on the above issue, rests with the Speaker of the

Assembly,  under  Paragraph  6  of  the  Tenth  Schedule.   Whether  the

Speaker’s  actions  fall  within  the  framework  of  the  Constitution,  or

otherwise, does not fall within the realm of consideration of the Governor.

The remedy for any wrong doing under the Tenth Schedule, lies by way of

judicial review.  Neither the provisions of the Constitution nor the ‘Conduct

of Business Rules’ assign any such role to the Governor.  It does not lie

within the domain of the Governor, to interfere with the functions of the

Speaker.   The Governor  is  not  a  guide  or  mentor  to  the  Speaker.   The

Governor  cannot  require  the  Speaker  to  discharge  his  functions  in  the

manner he considers constitutionally appropriate.  Both the Governor and

the  Speaker  have  independent  constitutional  responsibilities.   The

Governor’s messages with reference to such matters (as were expressed in

the message dated 9.12.2015), do not flow from the functions assigned to

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him.   The  Governor  cannot  likewise  interfere  in  the  activities  of  the

Assembly, for the reason that the Chief Minister, or the entire Council of

Ministers, or an individual Minister in the Cabinet, or for that matter even

an individual MLA, are not functioning in consonance with the provisions of

the Constitution, or in the best interest of the State.  The State Legislature,

does  not  function  under  the  Governor.   In  sum  and  substance,  the

Governor just cannot act as the Ombudsman of the State Legislature.

162. In view of the above, we have no hesitation in concluding, that 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.

163. For all  the reasons recorded hereinabove, we are of the considered

view, that the impugned message of the Governor dated 9.12.2015 is liable

to be set aside.  We order accordingly.

IV. Article 179 of the Constitution

179. “Vacation  and  resignation  of,  and  removal  from,  the offices  of  Speaker  and Deputy  Speaker  –  A  member  holding office as Speaker or Deputy Speaker of an Assembly - (a) shall vacate his office if he ceases to be a member of the Assembly; (b)  may at any time by writing under his hand addressed, if such member is  the Speaker,  to  the Deputy Speaker,  and if such member is the Deputy Speaker, to the Speaker, resign his office; and

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(c)  may  be  removed  from  his  office  by  a  resolution  of  the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.”

164. The  deliberations  and  the  discussions  recorded  hereinabove

substantiate, that even though in terms of Article 154, the executive power

of the State vests in the Governor, and further, the executive power vested

with  the Governor would be exercised by him either  directly  or  through

officers  subordinate  to  him  “in  accordance  with  this  Constitution”,  and

further,  the mandate contained in Article  166 enjoins,  that all  executive

actions of  the  Government of  a  State  are  expressed in  the  name of  the

Governor, yet Article 163(1) leaves no room for any doubt, that the Governor

is ordained, to exercise his functions on the aid and advice of the Council of

Ministers with the Chief Minister as the head.  Articles 154, 163 and 166

referred to above, are contained in Chapter II of Part VI of the Constitution,

which  relate  to  the  State  Executive.   It  is  therefore  apparent,  that  the

exercise of executive power by the Governor, is by and large notional.  All in

all, 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 aforesaid limited  power of  the Governor is  exercisable in situations,

expressly provided for “by or under” the provisions of the Constitution.  The

position which has briefly been recorded above, has been examined in some

detail in paragraph xxx 139 xxx of this judgment.

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165. Likewise,  even  though  Article  168  includes  the  Governor,  and

pronounces him to be a part of the State Legislature, the provisions of the

Constitution extend no legislative responsibility to him, within the precincts

of the House or Houses of the State Legislature.  Article 158 provides, that

the “… Governor shall not be a member of either House of Parliament or of a

House of the Legislature of any State specified in the First Schedule …”.

The Governor does not participate in debates within the Legislature,  nor

does he have any role in any activity which would result in the passing of a

Bill,  on  the  floor  of  the  House.   All  in  all,  the  legislative  functionality

constitutionally extended to the Governor, is extremely limited.  The role

assigned to a Governor in the entire gamut of the legislative process, is as

ascribed under Article 200.  Needless to mention, that when the House or

Houses of the State Legislature are not in session, the Governor has the

power to promulgate  Ordinances under Article  213.   No such legislative

power is vested with the Governor, while the House or Houses of the State

Legislature are in session.  But even the power to issue Ordinances, cannot

be exercised by the Governor, on his own.  Ordinances can be issued by the

Governor, only on the aid and advice of the Council of Ministers with the

Chief Minister as the head.  In sum and substance, the Governor is vested

with extremely limited legislative functions.  The position which has been

recorded above, has been examined in some detail in paragraph xxx 139

xxx of this judgment.

166. It  also  needs  to  be  kept  in  mind,  that  the  appointment  of  the

Governor is made under Article 155, not by way of an electoral process, but

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by  a  warrant  issued  under  the  hand  and  seal  of  the  President.  The

constitutional Governor, is to hold his office under Article 156, during the

pleasure of the President.  Since the President exercises his functions on

the aid and advice of the Prime Minister and his Council of Ministers, the

tenure of the office of the Governor has also to coincide with the aid and

advice of the Prime Minister and his Council of Ministers.

167. It is in the above background, that the ambit and scope of the role of

the Governor requires to be examined, with reference to the issue of removal

of the Speaker (or the Deputy Speaker) under Article 179(c).  Insofar as the

issue of the removal of the Speaker is concerned, the same would depend

on the result of the vote, on the notice of resolution for his removal.  If the

majority votes in favour of the motion, the resolution is liable to be adopted.

Failing  which,  it  is  liable  to  be  rejected.   In  the  above  situation,  it  is

apparent, that neither the Chief Minister, nor the Council of Ministers, has

any determinative  role  on the subject  of  removal  of  the Speaker (or  the

Deputy Speaker).  Their individual participation is limited to their individual

vote, either in favour or against the motion for the removal of the Speaker

(or  the  Deputy  Speaker).   Even  the  above  bit,  is  not  available  to  the

Governor.   The  Governor  has  no  role  whatsoever  in  the  removal  of  the

Speaker (or the Deputy Speaker). Therefore, in our considered view, no role

direct or indirect can be assumed by the Governor, under Article 179(c).

The assumption of such a role, and the fulfillment thereof by addressing a

message to the Assembly under Article  175, can only be ascribed as an

ingenuity, without any constitutional sanction.  In the above view of the

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matter, we are of the opinion, that the impugned message of the Governor

dated 9.12.2015, cannot be endorsed as constitutionally acceptable.

168. Despite the above, the facts and circumstances of the present case

reveal, that the Governor in his alleged bona fide determination issued the

impugned message dated 9.12.2015, statedly 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

question which arises for adjudication is not, that of the Governor’s  bona

fides.  The question is of the jurisdictional authority of the Governor, in the

above  matter.   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.  In

our final analysis, we are satisfied in concluding, that 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

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authority of the Governor, would fall within the scope of the judicial review,

and would be liable to be set aside.   

169. For all  the reasons recorded hereinabove, we are of the considered

view,  that  the  impugned  order  and  message  of  the  Governor  dated

9.12.2015 are liable to be set aside.  We order accordingly.

V. Tenth Schedule to the Constitution.

TENTH SCHEDULE [Articles 102(2) and 191(2)]

“6.  Decision  on  questions  as  to  disqualification  on  ground  of defection.—(1) If any question arises as to whether a member of a House  has  become  subject  to  disqualification  under  this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:  Provided  that  where  the  question  which  has  arisen  is  as  to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of  such member of  the House as the House may elect in this behalf and his decision shall be final.  (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.”

170. Paragraph 6 of the Tenth Schedule has been extracted above.  It inter

alia  postulates,  that  if  a  question  arises,  whether  a  member  of  the

Legislative  Assembly  has  become  subject  to  disqualification,  the

adjudicatory role  for determining the above question,  will  fall  within  the

exclusive  authority  of  the  Speaker;  and  in  case  of  a  member  of  the

Legislative  Council,  solely  on  the  shoulders  of  the  Chairman.

Sub-paragraph (2)  of  Paragraph 6,  by a constitutional  fiction,  adopts all

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proceedings carried out by the Speaker or the Chairman under the Tenth

Schedule, as proceedings of the State Legislature.   

171. It is apparent from a perusal of the provisions of the Tenth Schedule,

that no role whatsoever has been assigned to the Governor, in the matter of

removal of a member of the Assembly/Council.  In the above view of the

matter,  even where a petition is filed for disqualification of  one or more

MLAs  under  the  Tenth  Schedule,  the  Governor’s  direct  or  indirect

participation in the same, is impermissible.  The role of the Governor in

such matters, would fall  beyond the spectrum of constitutional sanction.

Besides  the  fact  that  the  Governor  has  no  role  whatsoever  in  the

proceedings carried  out  under  the  Tenth Schedule,  he  cannot  have any

interest in the outcome of the disqualification proceedings under the Tenth

Schedule.  The  Governor  can,  therefore,  never  be  concerned  with  the

proceedings under the Tenth Schedule, one way or the other.  The fictional

assumption,  that  the  proceedings  under  the  Tenth  Schedule  have  a

legislative  flavour,  and  are  akin  to  the  proceedings  before  the  State

Legislature, further removes the Governor from any participatory role in the

same.  Accordingly, in our considered view, any exercise of authority by the

Governor based on pending proceedings against members of the Legislative

Assembly, under the Tenth Schedule, are clearly beyond his constitutional

authority.  An order or message of the Governor, based on an underlying

consideration  relatable  to  pending  action(s)  of  disqualification,  against  a

member  or  members  of  the  State  Legislature,  would  be  constitutionally

unsustainable.   It  was acknowledged by both sides,  that the  impugned

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order and message of the Governor dated 9.12.2015, were prompted by the

petition filed on 7.12.2015, by the Chief Whip of the Congress Legislature

Party, seeking disqualification of 14 MLAs belonging to the INC.  The above

position  is  also  evident  from a perusal  of  the  order  and message dated

9.12.2015.  In the above view of the matter, it is obvious, that the order and

message were actuated by a constitutionally impermissible consideration.

The same are accordingly liable to be set aside.  We order accordingly.

172. The issue canvassed and answered hereinabove with reference to the

Tenth Schedule, does not fully answer the controversy which has arisen for

consideration  before  us.   The  proposition  canvassed,  also  relates  to the

propriety of Speaker, in conducting proceedings under the Tenth Schedule,

when his own position as the Speaker of the Legislative Assembly, is under

challenge.  After all, this was the real basis of the Governor having passed

the impugned order and message dated 9.12.2015.  The challenge to the

Speaker’s position, in the instant case, was based on a notice of resolution

for his removal dated 19.11.2015.  The resolution was moved by 13 MLAs

(-11 belonging to the BJP, and 2 Independent MLAs).  Despite the above,

unmindful of the challenge raised to his own position, the Speaker went on

with  the  disqualification  proceedings  initiated  by  the  Chief  Whip  of  the

Congress Legislature Party on 7.12.2015, by issuing a notice to them on

7.12.2015 itself,  seeking their response by 14.12.2015.  All the 14 MLAs

aforementioned, were disqualified by an order passed by the Speaker on

15.12.2015,  under  the  Tenth Schedule.  Was this  action of  the  Speaker,

justified?  Learned counsel for the rival parties, pointedly addressed us on

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this issue.  We are also of the view, that this issue needs to be determined

in view of the directions which will eventually emerge on the basis of the

consideration recorded hereinabove.   A repeat performance of  the earlier

process, would bring the parties back to the threshold of this Court, for the

redressal of the same dispute, which is already before us.

173. 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.  After all, disposal of the motion under Article 179(c), would take

no time at all.  As soon as the motion is moved, on the floor of the House,

the decision thereon will emerge, forthwith.  Why would a Speaker who is

confident of his majority, fear a floor test?  After his position as Speaker is

affirmed,  he  would  assuredly  and  with  conviction,  deal  with  the

disqualification petitions, under the Tenth Schedule.  And, why should a

Speaker who is not confident of facing a motion, for his removal, have the

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right  to  adjudicate  upon  disqualification  petitions,  under  the  Tenth

Schedule?  The  manner  in  which  the  matter  has  been  examined

hereinabove, is on ethical considerations.  A constitutional issue, however,

must have a constitutional answer.  We shall endeavour to deal with the

constitutional connotation of the instant issue, in the following paragraphs.  

174. Just like the other provisions of the Constitution (interpreted by us

hereinabove),  it  would be apposite  to  ascertain the desired intent of  the

framers  of  the  Constitution,  emerging  from  the  Constituent  Assembly

debates,  with  reference to  Article  179(c).   In  the  draft  Constitution,  the

present Article 179 was numbered as draft Article 158.  One of the issues

debated, with reference to draft Article  158(c)  was, with reference to the

words “all the then members of the Assembly”, used therein.  The above

words were used to define, those who would participate in the motion, for

the removal of the Speaker.  Needless to mention, that the said words were

retained in the final draft, in Article 179(c).   One of the members of the

Constituent Assembly had suggested substitution of the above words, by

the words, “the members of the Assembly present and voting”, as under:

“Mr. Mohd. Tahir: Sir, I beg to move: "That in clause (c) of article 158, for the words `all the then members of the Assembly' the words `the members of the Assembly present and voting' be substituted." Clause (c) runs as follows: "(c) may be removed from his office for incapacity or want of confidence by a resolution of the Assembly passed by a majority of all the then members of the Assembly." Sir, so far as I can understand the meaning of the wording, "all the then members of  the Assembly",  it  includes all  the members of  the Assembly. Supposing a House is composed of 300 members then, it will mean all the members of the Assembly, that is 300. Supposing fifty members  of  the  House  are  not  present  in  the  House,  then,  those members  will  not  have  the  right  to  give  their  votes  so  far  as  this

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question is concerned.  Therefore, I think that it would be better that this  matter  should  be  considered  by  only  those  members  who  are present in the Assembly and who can vote in the matter. If this phrase "all the then members of the Assembly" means the members who are present in the Assembly, then, I have no objection. If it means all the members of which the House is composed, I think it is not desirable to keep the clause as it stands. With these few words, I move my amendment.”

The Constituent  Assembly debates,  do  not  appear  to  have recorded any

discussion  on  the  above  amendment.   The  decision  on  the  proposed

amendment was however minuted as under:

“Mr. President: The question is: "That in clause (c) of article 158, for words ‘all the then members of the Assembly’ the words ‘the members of the Assembly present and voting' be substituted." The amendment was negatived.”

It is apparent, that the Constituent Assembly chose to retain the words, “all

the then members of the Assembly.”, and declined to substitute them with

the words, “the members of the Assembly present and voting”.  We are of

the view, that the acceptance of one set of words, and the rejection of the

suggested substitution, would effectively render a constitutional answer to

the issue in hand.

175. Article 179(c) provides, that a Speaker (or Deputy Speaker), “may be

removed  from  his  office  by  a  resolution  of  the  Assembly  passed  by  a

majority of all the then members of the Assembly”.  A notice of resolution

for the removal of the Speaker (or the Deputy Speaker) of the Assembly,

would therefore, have to be passed by a majority “of all the then members of

the Assembly”.  The words “all the then members” included in Article 179(c),

are a conscious adage.  If the words “all the then members” are excluded

from clause (c) of Article 179, it would affirm the interpretation which the

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appellants, wish us to adopt.  The connotation placed by the appellants,

would  legitimize  the  action  of  the  Speaker,  in  going  ahead  with  the

proceedings under the Tenth Schedule, even though a notice of resolution

for his removal from the office of Speaker was pending.  The words “all the

then  members”  were  consciously  added  to  Article  179(c),  and  their

substitution  was  not  accepted  by  the  Constituent  Assembly.   We  are

satisfied, that the words “passed by a majority of all the then members of

the  Assembly”,  would  prohibit  the  Speaker  from  going  ahead  with  the

disqualification proceedings under the Tenth Schedule, as the same would

negate  the  effect  of  the  words  “all  the  then  members”,  after  the

disqualification of one or more MLAs from the House.  The words “all the

then members”, demonstrate an expression of definiteness.  Any change in

the  strength  and  composition  of  the  Assembly,  by  disqualifying  sitting

MLAs, for the period during which the notice of resolution for the removal of

the Speaker (or the Deputy Speaker)  is pending, would conflict  with the

express  mandate  of  Article  179(c),  requiring  all  “the  then  members”  to

determine the right of the Speaker to continue.   

176. It  would  also  be  relevant  to  notice,  that  the  Tenth  Schedule  was

inserted  in  the  Constitution,  by  the  Constitution  (Seventy-third

Amendment) Act, 1992, with effect from 24.4.1993.  The purpose sought to

be achieved through the Tenth Schedule, is clear and unambiguous.  The

same is unrelated to, and distinct from, the purpose sought to be achieved

through Article  179(c).   Neither  of  the above provisions,  can be seen as

conflicting with the other.  Both, must therefore freely operate, within their

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individual constitutional space.  Each of them will have to be interpreted, in

a manner as would serve the object sought to be achieved, without treading

into the constitutional expanse of the other.  The interpretation would have

to be such, as would maintain constitutional purpose and harmony.  We

would now venture to examine the instant issue from the above perspective,

in the following paragraph.

177. If a Speaker survives the vote, on a motion for his removal from the

office  of  Speaker,  he  would  still  be  able  to  adjudicate  upon  the

disqualification petitions filed under the Tenth Schedule.  The process of

judicial review, cannot alter the above position.  But, if a disqualification

petition is accepted by the Speaker, the disqualified MLAs will have no right

to participate in the motion moved against the Speaker under Article 179(c).

A  disqualified  MLA,  as  we  all  know,  can  assail  the  order  of  his

disqualification,  by  way  of  judicial  review.   If  he  succeeds,  and  his

disqualification from the House is set aside, such a disqualified MLA, would

be  deprived  of  the  opportunity  to  participate  in  the  motion  against  the

Speaker,  under  Article  179(c).   In  this  situation,  the  process  of  judicial

review, can also alter the position, if a disqualification order passed by the

Speaker, is set aside by a Court of competent jurisdiction.  In the event of

an MLA having been disqualified by the Speaker, the notice of resolution for

the removal of the Speaker, would surely be dealt with, and will be disposed

of,  during  the  period  when  the  concerned  MLA  stood  disqualified.

Alternatively, if an MLA has not been disqualified when the motion for the

removal of the Speaker is taken up, he would have the right to vote on the

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motion pertaining to the removal of the Speaker, whereafter, the petition for

his own disqualification would certainly be considered and decided, by the

Speaker.  It is apparent, that the difficulty arises only, if the disqualification

petition is taken up first, and the motion for the removal of the Speaker is

taken  up  thereafter.   The  possibility  of  a  disqualification  petition  being

decided  on  political  considerations,  rather  than  on  merits,  cannot  be

ignored.  In  fact,  that  is  a  real  possibility.   Therefore,  while  it  will  not

adversely affect the Speaker, if he faces the motion of his own removal from

the office of Speaker, before dealing with the disqualification petitions, it

could seriously prejudice MLAs facing disqualification, if petitions for their

disqualification  are  taken  up  and dealt  with  first.   The  adoption  of  the

former course, would also result in meaningfully giving effect to the words

“all the then members” used in Article 179(c), as discussed in the foregoing

paragraph.  This interpretation would also purposefully give effect to the

rejection  of  the  amendment  suggested  during  the  Constituent  Assembly

debates, that the motion for removal of the Speaker, should be the majority

of “the members of the Assembly present and voting”.  This interpretation

would also result in disregarding the retention of the words “all the then

members  of  the  Assembly”,  in  Article  179(c).   If  the  Speaker  faces  the

motion of his own removal first, both the constitutional provisions would

have their independent operational space preserved.  None of the concerned

constitutional provisions would interfere with the free functionality of the

other, nor would one usurp the scheme postulated for the other.  We are

therefore  of  the  view,  that  constitutional  purpose  and  constitutional

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harmony would be maintained and preserved, if  a Speaker refrains from

adjudication of  a  petition for  disqualification  under the  Tenth Schedule,

whilst his own position, as Speaker, is under challenge.  This would also,

allow the two provisions (Article 179(c), and the Tenth Schedule) to operate

in their individual constitutional space, without encroaching on the other.

178. For the reasons recorded hereinabove, we hereby hold, that 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.

VI. The political imbroglio.

179. The first sequence of facts projected by the appellants, discloses the

alleged discord and dissension amongst MLAs of the ruling INC.  It  was

suggested, that the Governor having taken charge on 1.6.2015, acted in

support  of  BJP  causes.   It  would  be  necessary  to  record,  that  in  the

60-member Arunachal Pradesh State Legislative Assembly, 47 MLAs had

allegiance to the INC, 11 MLAs to the BJP, and there were 2 Independent

MLAs.  It was urged, that MLAs owing allegiance to the INC, had joined up

with  non-INC  MLAs,  to  exploit  the  situation.   To  harness  the  rebelling

MLAs, resignation letters were allegedly taken from at least 17 legislators

belonging to the INC.  Eventually resignation letters of two MLAs – were

accepted on 6.10.2015, leading to their removal from the House.  Efforts

made by the General Secretary AICC, in-charge for North-Eastern States –

V. Narayanasamy, President of the Arunachal Pradesh Congress Committee

– Padi Richo, the Chief Minister – Nabam Tuki and others, to reign in the

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dissident MLAs, did not have any positive effect.  The dissident MLAs even

addressed letters to the Governor, in furtherance of their objective, namely,

to change the Chief Minister – Nabam Tuki.  On 12.10.2015, the President

of the Congress Legislature Party, issued a show cause notice to 19 MLAs of

the INC, for indulging in anti-party activities.  The same was repulsed by a

press note issued by 21 MLAs of the INC, denouncing the leadership of the

Chief Minister.

180. On 16.11.2015, a notice of resolution for the removal of the Deputy

Speaker  –  Tenzing  Norbu  Thongdok,  was  statedly  moved  by  16  MLAs

belonging to the INC.  The Deputy Speaker, had been elected to the House

on an INC ticket. On 19.11.2015, 13 MLAs (-11 belonging to the BJP, and 2

Independent MLAs), moved a similar notice of resolution for the removal of

the Speaker – Nabam Rebia.  On 7.12.2015, the Chief Whip of the Congress

Legislature Party – Rajesh Tacho, filed a petition under the Tenth Schedule,

seeking  disqualification  of  14  dissident  MLAs  of  the  INC,  including  the

Deputy Speaker – Tenzing Norbu Thongdok, on account of their anti-party

activities.

181. On  9.12.2015,  to  ensure  that  the  notice  for  the  removal  of  the

Speaker was taken up for consideration without any delay, the Governor

ordered  the  preponement  of  the  6th  session  of  the  Assembly  earlier

scheduled for 14.1.2016, to 16.12.2015. The above order dated 9.12.2015,

was passed by the Governor, without consulting the Chief Minister and his

Council of Ministers or the Speaker.  The Governor additionally required,

that  the  party  composition  of  the  House  should  not  be  altered,  till  the

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motion  on  the  above  notice,  was  disposed  of.   This  was  done  by  the

Governor through a message dated 9.12.2015.  Through the above message,

the  Governor  attempted  to  forestall  the  proceedings  initiated  for

disqualification of  14 MLAs of  the INC, under the Tenth Schedule.   The

above message dated 9.12.2015, was issued by the Governor, without the

aid and advice of the Chief Minister and his Council of Ministers.   

182. On 14.12.2015, the Chief Minister in a Cabinet meeting, resolved that

the order of the Governor dated 9.12.2015 was unconstitutional.  And so

also, the message dated 9.12.2015.  The Speaker through his letter dated

14.12.2015,  brought  the  above  position  to  the  notice  of  the  Governor.

Disregarding  the  edict  of  the  Governor,  the  Speaker  –  Nabam  Rebia

proceeded against the 14 MLAs of the INC under the Tenth Schedule on

14.12.2015,  and  ordered  their  disqualification  and  consequent  removal,

from the  Assembly  on 15.12.2015.  On the same day  –  15.12.2015,  the

Deputy  Speaker  –  Tenzing  Norbu  Thongdok,  quashed  the  order  of

disqualification  of  the  14  MLAs  of  the  INC,  including  his  own

disqualification.   In  the  preponed  6th  session  of  the  Assembly  held  on

16.12.2015, the resolution for the removal of the Speaker – Nabam Rebia

was adopted.  All the 14 disqualified MLAs, participated in the resolution

moved against the Speaker.  The motion was passed. Nabam Rebia, ceased

to be the Speaker of the State Legislature, with effect from 16.12.2015.

183. The third sequence of facts projected by the respondents, highlights a

factual  dispute  between the parties,  namely,  whether or  not  a  notice  of

resolution for the removal of the Deputy Speaker – Tenzing Norbu Thongdok

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dated 16.11.2015, had actually been moved by 16 MLAs belonging to the

INC.   The instant  determination is  in  addition to  the  consideration and

conclusion (in paragraph 69, above) recorded by us on the same aspect of

the  matter  hereinbefore.  During  the  course  of  hearing  of  the  present

controversy,  we  examined  the  material  produced  before  us  by  the  rival

parties,  to  substantiate  the  respective  assertions.   Based  on  the  above

examination, we may record the following:

Firstly, a copy of the above notice dated 16.11.2015 had been called for, by

the  Governor  through  a  communication  dated  7.12.2015.   Associated

information about the date of receipt of the notice, and the action taken

thereon, was also asked for.  Even though the associated information was

furnished,  yet  a  copy  of  the  above  notice  dated  16.11.2015  was  not

furnished to the Governor.

Secondly, in the response of the Secretary of the Legislative Assembly dated

8.12.2015 (addressed to the office of the Governor), it was asserted, that the

notice dated 16.11.2015 was under consideration of the Speaker.  All the

same, a copy of the notice for the removal of the Deputy Speaker – Tenzing

Norbu Thongdok, was not forwarded to the Governor.

Thirdly, the Superintendent of Police-cum-ADC to the Governor, visited the

Secretary of the Legislative Assembly, and other officers of the Secretariat of

the Legislative Assembly, on 8.12.2015.  He recorded the entire position in a

note dated 8.12.2015.  He was informed by the staff,  that the notice of

resolution for the removal of the Deputy Speaker dated 16.11.2015, was in

a  file  lying  at  the  official  residence  of  the  Speaker  –  Nabam  Rebia,  at

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Itanagar.  The removal of the Deputy Speaker, is to be dealt with by the

Assembly,  and not  by the Speaker.   Accordingly,  it  was pointed out  on

behalf of the respondents, that there was no reason/occasion for the above

file to be at the official residence or custody of the Speaker.

Fourthly, the Speaker – Nabam Rebia is the appellant before us.  He has not

disputed the factual position indicated in the letter of the Secretary of the

Legislative Assembly dated 8.12.2015, or in the note of the Superintendent

of Police-cum-ADC to Governor.

Fifthly,  the  Speaker  –  Nabam Rebia  did  not  produce the  original  of  the

notice dated 16.11.2015, when called for by this Court.  The stance adopted

by him was, that the same is in the custody of the respondents.

Sixthly, the original notice dated 16.11.2015, was not produced before this

Court, despite the same having been called for.   

The appellant – Nabam Rebia, has not produced sufficient material before

this Court to demonstrate, that such a notice was actually issued (or was

ever received by him).  We will therefore have to proceed on the assumption,

that no such notice of resolution for the removal of the Deputy Speaker, was

ever  issued on 16.11.2015,  as  alleged.   The  instant  inference has  been

drawn by us, for the disposal of the present controversy.  The above factual

disputation, is however left open.  If such a question arises again, the rival

or  concerned parties,  will  have the  liberty  to  lead evidence,  to  enable  a

Court of competent jurisdiction, to determine the true factual position, with

respect  to  the  issuance  of  the  aforestated  notice  of  resolution  for  the

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removal  of  the  Deputy  Speaker  –  Tenzing  Norbu  Thongdok,  dated

16.11.2015.

184. The fourth sequence of  facts projected by the respondents reveals,

that a notice of resolution for the removal of the Speaker – Nabam Rebia,

was moved on 19.11.2015 by 13 MLAs (– 11 belonging to the BJP, and 2

Independent MLAs).  The above event took place, after the 5th session of the

Legislative  Assembly  was  prorogued  on  21.10.2015.   The  Governor  had

originally, by his order dated 3.11.2015, summoned the House to meet on

14.1.2016 for the 6th session of  the Assembly.   After  issuing the above

notice  of  resolution  for  the  removal  of  the  Speaker  –  Nabam  Rebia  on

19.11.2015, the concerned 13 MLAs addressed a letter on the same day –

19.11.2015,  to  the  Governor.   They  sought  consideration on the notice,

immediately on the completion of the notice period, provided for in the first

proviso under Article 179(c).  In their letter to the Governor, it was alleged,

that the ruling political party did not enjoy confidence and majority of the

House,  as  its  strength  had  been  reduced  to  25  out  of  the  60-member

Legislative Assembly.

185. Immediately  on  receipt  of  the  above  letter  dated  19.11.2015,  the

Governor  sought  details  about  the  notice  (-dated  19.11.2015)  from  the

Secretary of the Legislative Assembly, requiring him to confirm the factual

position, through a series of communications dated 27.11.2015, 3.12.2015

and 7.12.2015.  While the situation stood thus, the Chief Whip of the INC –

Rajesh Tacho sought disqualification of 14 MLAs (respondent nos. 2 to 15),

belonging to his own political party – the INC, under the Tenth Schedule, on

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7.12.2015.   A  day  thereafter,  i.e.,  on  8.12.2015,  the  Secretary  of  the

Legislative Assembly informed the Governor, that a notice of resolution for

the  removal  of  the  Speaker  –  Nabam  Rebia,  had  been  received  in  the

Legislative Assembly on 19.11.2015.  On confirmation of  the above fact,

that 13 MLAs had actually sought the removal of the Speaker, the Governor

sought legal opinion about the validity and legitimacy of the Speaker sitting

in  judgment  over  the  removal  of  14  MLAs,  even  though  a  notice  of

resolution  for  the  removal  of  the  Speaker  himself,  was  pending  in  the

Assembly.  Believing that there was an attempt to subvert the provisions of

the Constitution, the Governor rescheduled the 6th session of the Assembly

by preponing the same to 16.12.2015, by his order dated 9.12.2015.

186. The fifth sequence of facts projected by the respondents highlights,

that a challenge was raised by the appellants, to the order and message of

the Governor dated 9.12.2015, and in respect of other connected issues, by

filing Writ Petition (C) Nos. 7745 of 2015 and 7998 of 2015 (on 17.12.2015

and  22.12.2015,  respectively)  before  the  Gauhati  High  Court.   It  was

asserted on behalf of the respondents, that appreciation of the actual facts

would establish, that the challenge raised before the High Court through

the  above  petitions,  was  not  only  unfair  and  unreasonable,  but  also

illegitimate and constituted a misuse of the jurisdiction of the High Court.

Relying on the communication addressed by and on behalf of the Speaker –

Nabam Rebia and the Chief Minister – Nabam Tuki, it was pointed out, that

their projection through the above letters was, that the order and message

of the Governor dated 9.12.2015 were unconstitutional. MLAs belonging to

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the INC who were continuing to extend support to the Chief Minister had

taken a decision, not to allow the House to meet in terms of the order and

message dated 9.12.2015.  In fact, the Speaker of the House, it was pointed

out,  had  addressed  a  letter  to  the  Home  Minister  to  ensure,  that  no

individual  be  allowed  to  enter  the  Legislative  Assembly  building  from

15.12.2015 to 18.12.2015 (- during the entire duration, of the 6th session

of the Legislative Assembly).  Not even MLAs duly elected to the House, were

to be allowed entry in the premises of the Legislative Assembly.  A request

was also made by the Speaker – Nabam Rebia, for the deployment of IRBn

(Indian  Reserve  Battalion)  and  CPMF  (Central  Para  Military  Force)

personnel, along with monitoring systems.  The respondents desire us to

infer from the above sequence of events, that if those opposing the validity –

legal and constitutional, of the order and message of the Governor, were

certain about their standpoint, they ought to have sought judicial redress

immediately.  If they were right, the High Court would have immediately

ordered, course correction.  It was submitted, that all efforts were made to

subvert the proceedings of the State Legislature.  Only when they had failed

in their illegitimate action, they approached the High Court on 17.12.2015

and 22.12.2015, by which time, due process had resulted in the decisions

referred to above.

187. The  sixth  sequence  of  facts projected  by  the  respondents,  was

founded on the prevailing political situation in the State since March/April

2015, which got worst in September 2015 when 21 MLAs of the INC started

to oppose their own party leadership, by calling for the removal of the Chief

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Minister – Nabam Tuki, and for the installation of Kalikho Pul (a former

Finance Minister of the State),  in his place.  In order to quell the above

dissensions, resignation letters of two MLAs - Wanglam Sawin and Gabriel

D. Wangsu were accepted, as it was felt that this would rein in the others.

The above two MLAs approached the High Court, which stayed the order

accepting their resignations, on 7.10.2015.  It was at this juncture, that the

above  two  MLAs  amongst  21  MLAs  approached  the  Governor,  on

11.10.2015.  They made complaints against the Chief  Minister  – Nabam

Tuki and the Speaker – Nabam Rebia, to the Governor.  Shortly thereafter

on 19.11.2015,  13 MLAs (-  11 from the BJP and 2  Independent  MLAs)

sought the removal of the Speaker – Nabam Rebia under Article 179(c).  On

the same day – 19.11.2015,  the above 13 MLAs met the Governor,  and

sought preponement of the 6th session of the House.   

188. The  above sequence  of  facts,  according  to  learned counsel  for  the

respondents, and the impressions of the Governor, expressed in his letters

addressed to the President dated 17.10.2015, 19.11.2015 and 1.12.2015

should be visualized together.  It was pointed out, that only then, it will be

possible to appreciate the Governor’s thought process, when he issued the

order and message dated 9.12.2015.  In the letter dated 17.10.2015, the

Governor informed the President about the growing dissidence amongst the

MLAs of the INC, who seemed to be divided into two groups, one headed by

Nabam Tuki – the Chief Minister, and the other by Kalikho Pul – a former

Finance Minister of the State.  The Governor also narrated details of the

acceptance of  the  resignation letters  of  two  MLAs of  the  INC,  and their

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intimation  to  the  Governor,  that  they  had been coerced to  resign.   The

Governor also disclosed the alleged threats issued by unknown miscreants,

to the two MLAs who had resigned, and to Kalikho Pul.  His letter pointed

out, that similar threats were also allegedly extended to members of their

families.   In  the  letter  dated  19.11.2015,  the  Governor  informed  the

President about the prevailing political complexity, and growing dissidence

amongst  MLAs  belonging  to  the  INC,  including  some Ministers.   In  his

letter, the Governor also narrated the contents of the memorandum issued

by  MLAs  on  12.11.2015  calling  for  the  removal  of  the  ruling  INC

Government, for paving the way for a new regime to take over.  And also,

the press statement issued by the Peoples Party of Arunachal, calling upon

the Governor to require the Chief Minister to prove his majority on the floor

of the House, failing which – to step down.  In the letter dated 1.12.2015,

the Governor informed the President about the receipt of a memorandum

dated  19.11.2015,  requiring  him  to  prepone  the  6th  session  of  the

Assembly.  This request, according to the Governor’s letter, was supported

by the Peoples  Party  of  Arunachal,  on the  ground that  the  Government

headed by Nabam Tuki, had completely lost the confidence of the people,

and had been reduced to a minority.  A notice of resolution for the removal

of the Speaker – Nabam Rebia dated 19.11.2015 signed by 13 MLAs, as well

as, the dissidents within the MLAs of the INC, was again highlighted.

189. During the course of hearing, learned counsel for the respondents,

had placed reliance on the first, third, fourth, fifth and sixth sequence of

facts,  to  contend that  the  political  turmoil  which prevailed  in  the  State

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Legislature was of a nature, which would render seeking advice from the

Council of Ministers and the Chief Minister, purposeless and futile.  It was

submitted, that personal interests of constitutional authorities – the Chief

Minister and the Speaker, had brought political volatility, which was having

an adverse effect  on the democratic  functioning of  the State Legislature.

Some  of  the  salient  features  highlighted  to  substantiate  the  above

assertions, may be summarized below:

Firstly,  the Chief  Minister  – Nabam Tuki was not being accepted as the

Leader of the House by at least 21 dissident MLAs, belonging to his own

political party – the INC.   In the 60-member State Legislative Assembly,

having 47 MLAs from the INC, with the 21 dissident MLAs from the INC, the

Chief Minister, according to the dissidents, could not have mustered a vote

of confidence.

Secondly,  efforts  made  by  the  party  leadership,  including  the  General

Secretary  AICC  in-charge  for  North  Eastern  States,  the  President  of

Arunachal Pradesh Congress Committee, and other party leaders, could not

rein in the 21 dissident MLAs.

Thirdly,  resignation  letters  were  taken  from  17  MLAs  on  6.10.2015.

Resignation letters of 2 MLAs were accepted.  The said 2 MLAs from the INC

-  Wanglam  Sawin  and  Gabriel  D.  Wangsu,  alleged  that  they  had  been

coerced into resigning from their membership of the Legislative Assembly.

The above two MLAs approached the High Court, which stayed the order of

acceptance of their resignation on 7.10.2015, clearly giving the Governor

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the impression, that their assertion of being coerced into resigning from the

membership of the Legislative Assembly, was prima facie correct.

Fourthly, the political turmoil in the Legislative Assembly, was on account

of the complicity between the Chief Minister – Nabam Tuki and the Speaker

– Nabam Rebia.  Both were related, and had joined hands to frustrate the

democratic process, to subvert the action of the rival MLAs, aimed at their

removal.  The Chief Minister and the Speaker being cousins, were adopting

all sorts of means, in support of one another.

Fifthly,  on  12.10.2015,  the  President  of  the  Congress  Legislature  Party

issued  a  show  cause  notice  to  19  MLAs  of  the  INC,  for  indulging  in

anti-party activities.  The action was denounced by 21 MLAs of the INC,

through a press note.

Sixthly, a strong impression was created, that a notice of resolution for the

removal  of  the  Deputy  Speaker  –  Tenzing  Norbu  Thongdok  dated

16.11.2015 had been moved by 16 MLAs belonging to the INC.  We have

already concluded hereinabove, that the appellants have not been able to

produce sufficient material to establish, that such a notice was ever issued.

Seventhly,  on  19.11.2015,  13  MLAs  (-11  belonging  to  the  BJP,  and  2

Independent MLAs) issued a notice for the removal of the Speaker – Nabam

Rebia.  A copy, as also, confirmation of the aforesaid notice sought by the

Governor,  was  furnished  to  him  by  the  Secretary  of  the  Legislative

Assembly.

Eighthly, the 13 MLAs who had signed the notice for the removal of the

Speaker, by their letter dated 19.11.2015, sought preponement of the 6th

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session of the House, so as to be convened immediately on the completion

of the notice period, provided for, in the first proviso under Article 179(c).

Ninthly, the Governor addressed three communications to the Secretary of

the  Legislative  Assembly  dated  27.11.2015,  3.12.2015,  and  7.12.2015,

seeking a copy of the notice of resolution dated 16.11.2015, but the same

was never furnished to him.

Tenthly,  the  Governor’s  letters  dated  17.10.2015,  19.11.2015  and

1.12.2015 to the President, depicting the prevailing political turmoil in the

State  of  Arunachal  Pradesh,  and  highlighting  the  intra-party  dispute

between the MLAs belonging to the INC.

Eleventhly,  a  meeting  of  the  Congress  Legislature  Party  was  held  on

3.12.2015.  During the said meeting the activities of 21 MLAs of the INC

were discussed, and their anti-party activities were highlighted.

Twelfthly, on 7.12.2015, the Chief Whip of the Congress Legislature Party –

Rajesh Tacho,  sought  disqualification  of  14 MLAs belonging  to  the  INC,

under the Tenth Schedule.   

It was further pointed out, that the sequence of facts which transpired after

9.12.2015  (after  the  Governor’s  order  and  message,  dated  9.12.2015)

reveals, that the inferences drawn by the Governor, about the prevailing

political  imbroglio  in  the  Legislative  Assembly,  had  been  correctly

appreciated and understood by him.  The subsequent events are narrated

hereunder:

Thirteenthly, on 12.12.2015, the Advocate General of the State of Arunachal

Pradesh, on being asked, tendered his opinion with reference to the order

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and message of  the Governor dated 9.12.2015.   As per his opinion,  the

above  order  and message  were  unconstitutional,  and in  violation  of  the

‘Conduct of Business Rules’.

Fourteenthly, a Cabinet meeting was held on 14.12.2015, wherein, based

on the opinion of the Advocate General, the Cabinet resolved, that the order

of  the  Governor  dated  9.12.2015 was  contrary  to  Article  174  read  with

Article 163 and Rule 3 of the ‘Conduct of Business Rules’.  And also, that

the message of the Governor dated 9.12.2015 was contrary to Article 175

and Rule 245 of the ‘Conduct of Business Rules’.

Fifteenthly, the Secretary of the Legislative Assembly wrote a letter to the

Governor dated 14.12.2015, indicating that Article 174 did not contemplate

preponement  or  postponement  of  an  Assembly  session,  without

consultation with the Government and the Speaker.  A reference was also

made to Article 175, so as to point out, that a message can be addressed by

the Governor, only when the House is in session.

Sixteenthly, the Officer-on-Special Duty to the Chief Minister addressed a

letter dated 14.12.2015 on behalf of the Chief Minister and his Council of

Ministers  and  some  other  MLAs,  requesting  for  a  meeting  with  the

Governor.   Nine Ministers including the Chief Minister met the Governor on

15.12.2015, and allegedly committed acts of serious misbehaviour, at the

office/residence  of  the  Governor,  details  whereof  were  disclosed  by  the

Governor to the High Court, through I.A. No.29 of 2016.

Seventeenthly,  on  14.12.2015,  a  Cabinet  meeting  was  held,  wherein  a

resolution was passed by the Council of Ministers and the Chief Minister,

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requesting the Governor to recall and cancel, the order and message dated

9.12.2015, and allow the session to be convened on 14.1.2016, as earlier

scheduled.

Eighteenthly,  the Speaker – Nabam Rebia, through a communication dated

14.12.2015,  requested  the  Minister  (Home)  –  Tanga  Byaling,  to  provide

foolproof security,  in and around the Legislative Assembly building, from

15.12.2015  to  18.12.2015,  and  to  ensure  that  no  individual  including

MLAs, enter the Assembly building, during the above period.

Nineteenthly, on 15.12.2016, the Speaker – Nabam Rebia, disqualified 14

members  of  the  Assembly  belonging  to  the  INC,  including  the  Deputy

Speaker – Tenzing Norbu Thongdok.

Twentiethly,  the  Deputy  Speaker  on  15.12.2015  itself,  set  aside  the

disqualification  order  (-dated  15.12.2016),  including  his  own

disqualification order.

Twenty-firstly,  the  notice  of  resolution  for  the  removal  of  the  Speaker  –

Nabam Rebia,  was  taken  up  for  consideration  as  the  first  item,  in  the

agenda  of  the  Assembly  on  16.12.2015.   The  resolution  was  adopted

resulting in the removal of Nabam Rebia, from the office of Speaker.

Twenty-secondly, during the course of the proceedings of the House held on

17.12.2015, the Government headed by the Chief Minister – Nabam Tuki,

was declared as having lost confidence of the Legislative Assembly.  Kalikho

Pul, another INC MLA, was chosen to replace the Chief Minister.

190. Premised on the aforesaid factual position, it was asserted on behalf

of the respondents, that it was wholly unjustified for the Governor to remain

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silent.  It was submitted that the prevailing situation called for immediate

redressal, so as to preserve the democratic process in the State Legislature,

and  more  particularly,  to  prevent  high  constitutional  functionaries

including  the  Chief  Minister,  the  Speaker,  and  Cabinet  Ministers,  from

acting with constitutional impropriety.

191. We  have  given  our  thoughtful  consideration  to  the  submissions

advanced at the hands of the learned counsel for the respondents.  We shall

now endeavour to deal with the position highlighted through the factual

narration  summarized  above.   It  is  apparent  from  the  discussion  and

reflection recorded by us, that a Governor of a State, has clearly defined

duties, functions and responsibilities.   The parameters of the Governor’s

powers  with  reference  to  Articles  163,  174,  175,  179  and  the  Tenth

Schedule,  have  been  dealt  with  by  us  hereinabove,  and  need  not  be

repeated.  We are of the view, that it needs to be asserted as a constitutional

determination, that it is not within the realm of the Governor to embroil

himself in any political thicket.  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 a political question, to be dealt with and resolved privately by the

political party itself.  The Governor cannot, make such issues, a matter of

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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.

192. It  is  open  to  the  Governor  to  take  into  consideration,  views  of  a

breakaway group.  Under Paragraph 4 of the Tenth Schedule, legitimacy is

bestowed on a breakaway group which comprises of not less than two thirds

of the members of the concerned legislature party.  In the present case, the

breakaway group belonging to the ruling INC comprised of  21 members,

whereas  the  INC  had  47  MLAs  in  the  prevailing  60-member  Legislative

Assembly.  21 MLAs belonging to the INC did not constitute a legitimate and

recognizable breakaway group.  The Governor could not in support of the

protests  and  assertions  of  an  invalid  breakaway  group,  adopt  a

constitutional course, recourse whereof could be taken only in case of a

constitutional crisis.  As for instance, when the Government is seen to have

lost  the confidence of  the House.  It  has never been the position of  the

Governor, that the Chief Minister – Nabam Tuki, had lost the confidence of

the  House.   Nor,  that  the  INC  could  not  sustain  its  majority  in  the

Assembly.  Had that been the position, the Governor would have called for a

floor test.  Admittedly, the Governor never called for a floor test, nor did he

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ever require the Chief Minister to establish his majority in the House.  The

Governor’s actions,  based on feuds and wrangles of  a breakaway group,

which  is  not  recognized  under  the  Tenth  Schedule,  cannot  be

constitutionally condescended.

193. The Governor has 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.  If the resolution for the Speaker’s removal is

supported by a simple majority of the members of the House, the motion

has to be adopted, and the Speaker has to be removed. Failing which, the

motion has to be rejected.  Any action taken by the Governor, based on

disputations, with reference to activities in which he has no role to play, is

liable to be considered as extraneous.  It is not for the Governor to schedule

the functioning of the Assembly.  It is also not in the Governor’s domain, to

schedule the agenda of the House.  The Governor has no role with reference

to the ongoings in the Assembly.  The Governor must keep away, from all

that goes on, within the House.   

194. As long as the democratic process in the Assembly functions through

a Government,  which has the  support  of  the  majority,  there  can be no

interference  at  the  behest  of  the  Governor.   A  constitutional  failure  as

contemplated  under  Article  356,  is  quite  another  matter.   So  also,  a

constitutional  failure  under  Article  360.   Herein,  the  Governor  has  not

treaded the procedure postulated for a constitutional breakdown.

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195. There  is  no  justification  for  a  Governor  to  be  disturbed  about

proceedings  in  connection  with  the  disqualification  of  MLAs  under  the

Tenth Schedule.  Because, the Governor has no role therein. Even the Chief

Minister  and  his  Council  of  Ministers,  have  no  concern  with  the

disqualification  proceedings  contemplated  under  the  Tenth  Schedule.

Therefore, the legitimacy or illegitimacy thereof, is beyond consideration of

the  Governor.   That  being  the  constitutional  position,  there  can  be  no

justification  in  the  Governor  initiating  action,  based  on  proceedings

commenced against MLAs, under the Tenth Schedule.  Any action taken by

the Governor, based on the proceedings being carried on under the Tenth

Schedule, would be a constitutional impropriety.  It is open to individual

MLAs, against whom disqualification proceedings are taken (or who have

been  disqualified,  and  consequently  have  lost  their  membership  of  the

House), to seek judicial review thereof.  The fact that 14 MLAs who were

disqualified by the Speaker – Nabam Rebia, on 15.12.2015, had approached

the  Gauhati  High  Court,  which  had  stayed  the  order  of  their

disqualification, demonstrates that there are appropriate remedies in place.

The Governor need not worry about, or involve himself in, issues which are

within  the  realm  of  other  constitutional  authorities.   The  Indian

Constitution provides for checks and balances, and a regime of redressal,

for all situations.

The decision:

196. Based  on  the  consideration  and  the  conclusions  recorded

hereinabove, it is inevitable to conclude as under:

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(i) The order of the Governor dated 9.12.2015 preponing the 6th session

of  the Arunachal  Pradesh Legislative  Assembly,  from 14.1.2016,  to

16.12.2015 is  violative  of  Article  163 read  with  Article  174 of  the

Constitution of India, and as such, is liable to be quashed.  The same

is accordingly hereby quashed.

(ii) The message of the Governor dated 9.12.2015, directing the manner

of conducting proceedings during the 6th session of the Arunachal

Pradesh  Legislative  Assembly,  from  16.12.2015  to  18.12.2015,  is

violative of Article  163 read with Article  175 of the Constitution of

India, and as such, is liable to be quashed.  The same is accordingly

hereby quashed.

(iii) All  steps and decisions taken by the Arunachal Pradesh Legislative

Assembly,  pursuant  to  the  Governor’s  order  and  message  dated

9.12.2015, are unsustainable in view of the decisions at (i)  and (ii)

above.  The same are accordingly set aside.

(iv) In view of the decisions at (i) to (iii) above, the  status quo ante as it

prevailed on 15.12.2015, is ordered to be restored.

…………………………………………………J. (Jagdish Singh Khehar)

…………………………………………………J. (Pinaki Chandra Ghose)

…………………………………………………J. (N.V. Ramana)

Note: Emphases supplied in all the quotations extracted above, are ours.

New Delhi; July 13, 2016.

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REPORT ABLE

  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6203-6204   OF 2016 (@ SPECIAL LEAVE PETITION (CIVIL) NOS. 1259-1260 OF

2016)   

NABAM REBIA AND BAMANG FELIX …Appellant(s)

Versus DEPUTY SPEAKER AND ORS. …Respondent(s)

J U D G M E N T

Dipak Misra, J.  

I  respectfully  concur with the  views expressed on

each  of  the  aspects  by  my  respected  learned  brother

Khehar,  J.   However,  I  intend  to  add  something

pertaining to the interpretation of Article 179(c)  of  the

Constitution  of  India  especially  in  the  context  of  the

Tenth Schedule to the Constitution.

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2. 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).   

3. Article 179 reads as follows:-

“179. A member holding office as Speaker or Deputy Speaker of an Assembly― shall  vacate  his  office  if  he  ceases  to  be  a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the  Deputy  Speaker,  and if  such member  is the Deputy Speaker, to the Speaker, resign his office; and  (c) may  be  removed  from  his  office  by  a resolution  of  the  Assembly  passed  by  a majority  of  all  the  then  members  of  the Assembly:

Provided  that  no  resolution  for  the purpose of clause (c) shall be moved unless at least fourteen days’  notice  has been given of the intention to move the resolution.

Provided  further  that,  whenever  the Assembly is  dissolved,  the Speaker  shall  not vacate his office until  immediately before the first  meeting  of  the  Assembly  after  the dissolution.”

[underlining by me]

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Be  it  immediately  clarified,  we  are  not  concerned

with the second proviso.

4. The thrust of the matter is what interpretation is to

be placed on Article 179(c) and the first proviso, being

diligently and respectfully adherent to the norms of the

constitutional  interpretation.  I  may  state  with  quite

promptitude  the  purpose  of  adherence  should  not

convey that I am confined to any kind of static principle

but the principles that flow from our organic, vibrant,

flexible,  inclusive  and  compassionate  Constitution.

There are precedential guides and, if I allow myself to

say,  constitutional  precepts those serve as light  posts

without  causing  any  violence  even  remotely,  to  the

language employed in the Constitution.  

5. In  State  of  Karnataka  v.  Union  of  India  and

another21 Beg, C.J. posed  the question with regard to

understanding  of  special  rules  relating  to  the

construction  of  Constitution  in  general  or  of  our

21

(1977) 4 SCC 608 220

Page 221

Constitution in particular.   In that context, the learned

Chief Justice spoke thus:-  

“83. A written Constitution, like any other enactment,  is  embodied  in  a  document. There are certain general rules of interpre- tation  and  construction  of  all  documents which, no doubt, apply to the Constitution as well. Nevertheless, the nature of a Con- stitution of a sovereign Republic, which is meant to endure and stand the test of time, the  strains  and  stresses  of  changing  cir- cumstances,  to  govern  the  exercise  of  all governmental powers, continuously, and to determine the destiny of a nation, could be said to require a special approach so that judicial  intervention  does  not  unduly thwart the march of the nation towards the goals it has set before itself.

x x x x x

85. Although, a written Constitution, which is  always  embodied in  a  document,  must necessarily be subject to the basic canons of construction of documents, yet, its very nature  as  the  embodiment  of  the  funda- mental  law  of  the  land,  which  has  to  be adapted to the changing needs of a nation, makes it imperative for Courts to determine the meanings of its parts in keeping with its broad and basic  purposes  and objectives. This  approach  seems  to  flow  from  what may be called a basic principle of construc- tion  of  documents  of  this  type;  that  the paramount  or  predominant  objects  and purposes, evident from the contents, must prevail  over  lesser  ones obscurely  embed- ded here and there. The Constitutional doc- ument, in other words, must be read as a whole and construed in keeping with its de- clared  objects  and  its  functions.  The  dy- namic needs of the nation, which a Consti-

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tution must fulfil, leave no room for merely pedantic  hairsplitting  play  with  words  or semantic  quibblings.  This,  however,  does not mean that the Courts, acting under the guise  of  a  judicial  power,  which certainly extends to even making the Constitution, in the sense that they may supplement it in those parts of it where the letter of the Con- stitution is silent or may leave room for its development  by either  ordinary legislation or judicial interpretation, can actually nul- lify, defeat, or distort the reasonably clear meaning of any part of the Constitution in order to give expression to some theories of their own about the broad or basic scheme of the Constitution.

86.  The  theory  behind  the  Constitution which can be taken into account for pur- poses of interpretation, by going even so far as to fill what have been called the “inter- stices” or spaces left unfilled, due perhaps to some deliberate vagueness or indefinite- ness in the letter of the Constitution, must itself be gathered from express provisions of the  Constitution.  The  dubiousness  of  ex- pressions used may be cured by Courts by making their meanings clear and definite if necessary in the light of the broad and ba- sic purposes set before themselves by the Constitution-makers. And, these meanings may, in keeping with the objectives or ends which  the  Constitution  of  every  nation must serve, change with changing require- ments of  the times.  The power of  judicial interpretation, even if it includes what, may be termed as “intersticial” law making, can- not  extend to  direct  conflict  with  express provisions of the Constitution or to ruling them out of existence.”  

[emphasis added]   

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The  aforesaid  paragraphs  clearly  convey  that

judicial interpretation cannot nullify, defeat or distort a

constitutional  provision  or  the  interpretative  process

cannot be in direct conflict with the express provision of

the Constitution. However, the learned Chief Justice has

observed that constitutional document has to be read as

a  whole  and  construed  keeping  in  view  the  declared

objects  and  functions.   In  the  said  judgment,  a

distinction has been drawn between “the constitutional

law” or “the fundamental law” and other laws which may

be  important  to  constitutional  matters.   I  think  it

appropriate to reproduce the said passage:-

 “… The “fundamental distinction” between “the constitutional  law”  or  “the  fundamental  law” and the ordinary laws, referred to there, was meant to bring out only this difference in the uses made of laws which, being “fundamental”, can test the validity of all other laws on a lower normative level and these other laws which are so  tested.  In  that  very  special  or  restricted sense, the law not found in “the Constitution” could not be “constitutional,” or “fundamental” law… .”  

6. In   S.R.  Chaudhuri  v.  State  of  Punjab  and

others22, a three-Judge Bench while dwelling upon the

22 (2001) 7 SCC 126 223

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manner in which the constitutional provisions are to be

interpreted had observed thus:-  

“Constitutional  provisions  are  required  to  be understood and interpreted with an object-ori- ented approach.  A Constitution must  not  be construed in a narrow and pedantic sense. The words used may be general in terms but, their full import and true meaning, has to be appre- ciated  considering  the  true  context  in  which the same are used and the purpose which they seek to achieve.”

And, again:-

“It  is  a  settled  position  that  debates  in  the Constituent Assembly may be relied upon as an aid to interpret a constitutional  provision because it is the function of the court to find out the intention of the framers of the Consti- tution. We must remember that a Constitution is not just a document in solemn form, but a living  framework  for  the  Government  of  the people  exhibiting a sufficient  degree of  cohe- sion and its successful working depends upon the  democratic  spirit  underlying  it  being  re- spected in letter and in spirit…”     

7. In this regard, I think it apt to reproduce a passage

from the  Constitution  Bench decision  in M.  Nagaraj

and others v. Union of India and others23 :-  

“The  Constitution  is  not  an  ephemeral  legal document  embodying  a  set  of  legal  rules  for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs.  There-

23 (2006) 8 SCC 212 224

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fore, a purposive rather than a strict literal ap- proach  to  the  interpretation  should  be adopted.  A  constitutional  provision  must  be construed  not  in  a  narrow  and  constricted sense but in a wide and liberal manner so as to  anticipate  and  take  account  of  changing conditions  and  purposes  so  that  a  constitu- tional provision does not get fossilised but re- mains  flexible  enough  to  meet  the  newly emerging problems and challenges.”

[emphasis supplied]

8.  I have referred to the aforesaid pronouncements as

they have laid down the guidelines for understanding

the text, context, the words and the purpose of a consti-

tutional provision. Emphasis is on flexibility, adaptabil-

ity and  durability, and also not to import or implant an

interpretation which would be in conflict with the ex-

press language of the Constitution.    

9. Having perceived the guidance from the precedents

and  keeping  in  view  the  cohesive  constitutional  pre-

cepts, I shall proceed to analyse the language employed

in Article 179(c). Prior to that, I think it condign to dwell

upon the importance of the office of the Speaker.  There

is no shadow of doubt in my mind that to appreciate the

significance of the provision, namely, Article 179(c),  in

the context  of  constitutional  supremacy and constitu-

tional consciousness, it is necessary to understand the 225

Page 226

position of the Speaker in the Constitution. Office of the

Speaker in our history had its origin in 1921 when the

Central Legislative Assembly was constituted under the

Montague-Chelmsford  reforms.  At  that  time,  office  of

the Speaker did not enjoy much importance. But, a sig-

nificant one, after the Constitution came into force, as is

evident  from  the  constitutional  scheme  of  ours,  the

Speaker enjoys high constitutional status and the Con-

stitution reposes immense faith in him.  For this reason

alone, the Speaker is expected to have a sense of ele-

vated  independence,  impeccable  objectivity  and  irre-

proachable fairness, and above all absolute impartiality.

This  expectation  is  the  constitutional  warrant;  not  a

fond hope and expectation of any individual or group.

10. The Speaker has the duty to see that business of

the House is carried out in a decorous and disciplined

manner.   This  functioning  requires  him  to  have

unimpeachable  faith  in  the  intrinsic  marrows  of  the

Constitution, constitutionalism and, “Rule of Law”. The

faith,  needless  to  emphasise,  should  be  a  visible  and

apparent one.  That is why, possibly, former Speaker of

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the  House  of  Commons  of  the  United  Kingdom,

Baroness Boothroyd24, stated:-

“When you have been committed all your adult life  to  the  ideals  and  policies  of  one  party, impartiality is a quality that you have to work at.  But if  you cannot  put aside partisanship you have no right to even think of becoming Speaker.”

I have referred to the aforesaid only to stress upon

the  impartial  functioning  and  the  constitutional

neutrality of the Speaker.   

11. The  expression  can  be  different  if  one  wishes  to

choose  the  metaphor  of  the  ancients.   The  ancient

wisdom  would  require  the  Speaker  to  abandon  his

“purbashrama”  and  get  wedded  to  “parashrama”.   To

elucidate,  a  Speaker  has  to  constantly  remain  in

company with the cherished values of incarnation of his

office  and  not  deviate  even  slightly  from  the

constitutional  conscience  and  philosophy.  His

detachment has to have perceptibility.   

12. For  apposite  appreciation,  I  may  refer  to  the

Constitutent  Assembly  debates.   The  position  of  the

Speaker  being  different,  the  procedure  for  removal  is

24 THE RT HON. BARONESS BOOTHROYD, The Role of the Speaker in the 20th Century, The  Parliamentary History Yearbook Trust, Vol. 29, Issue 1, Feb 2010, page 136  

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different and, the debate in the Constituent Assembly is

indicative of the same:-

To quote:-

“Mr. Mohd. Tahir: Sir, I beg to move: “That in clause (c) of article 158, for the words  ‘all the then members of the Assembly’ the  words ‘the members of the Assembly present  and voting’ be substituted.” Clause (c) runs as follows: “(c) may be removed from his office for  incapacity or want of confidence by a  resolution of the Assembly passed by a  majority of all the then members of the  Assembly”. Sir, so far as I can understand the meaning of the  wording,  “all  the  then  members  of  the Assembly”, it includes all the members of the Assembly.  Supposing a House is composed of 300  members  then,  it  will  mean  all  the members  of  the  Assembly,  that  is  300. Supposing fifty members of the House are not present  in  the  House,  then,  those  members will not have the right to give their votes so far as  this  question  is  concerned.   Therefore,  I think that it would be better that this matter should be considered by only those members who are present in the Assembly and who can vote in the matter.  If this phrase “all the then members  of  the  Assembly”  means  the members  who  are  present  in  the  Assembly, then, I have no objection.  If it means all the members of  which the House is  composed,  I think it is not desirable to keep the clause as it stands. With these few words, I move my amendment”.

“Mr. President: The question is :

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“That in clause (c) of article 158, for words ‘all  the then members of the Assembly’ the words  ‘the members of the Assembly present and  voting’ be substituted.” The amendment was negatived.”

The factum of negativing the proposed amendment

has to be appreciated keeping in mind the wisdom of the

Founding Fathers.  

13. Presently to the anatomy of Article 179(c). The said

provision  lays  focus  on  two  aspects,  namely,  (i)

resolution of the Assembly, and (ii) the resolution to be

passed by  a  majority  of  all  the  then members  of  the

Assembly.   The  first  proviso  commands  that  no

resolution for the purpose of clause (c) shall be moved

unless  fourteen  days'  notice  has  been  given  of  the

intention to move the resolution. The fourteen days' time

as  mandated  by  the  constitutional  provision  gives

protection to the Speaker.  It has a salutary purpose.

The Founding Fathers of the Constitution had thought it

appropriate that a resolution to be moved for removal of

the  Speaker  is  a  matter  of  grave  constitutional

consequence and, therefore, the “intention to move the

resolution”,  has  to  precede  the  act  of  moving  of  the

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resolution.  Be it stated that the Rules are framed under

Article  208  of  the  Constitution  for  regulating  the

procedure of a House of the Legislature of a State and

the  conduct  of  its  business  and  said  procedures

prescribe  the  manner  of  expressing  the  intention  to

move the resolution.  

14. While prescribing a resolution to be passed by the

majority,  the  framers  of  the  Constitution  have  also

provided for “all the then members of the Assembly”.  It

indicates the intention of the Founding Fathers that “all

the then members of the Assembly” have to be regarded

as  to  be  the  actual  or  real  figure.   A  hypothetical

argument may be advanced that if a member dies within

the  prescribed  period  of  14  days,  it  may  lead  to  an

absurd  situation.   Similarly,  the  issue  of  resignation

may  arise  or  some  may  stand  convicted  and  thereby

become disqualified. Death or resignation has to be kept

in a different realm.   

15. The fulcrum of the controversy is “disqualification”.

Different  disqualifications  find  mention  under  Article

191(1)  of  the  Constitution.   These  contingencies  are

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be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the mean- ing of Article 122 or, as the case may be, pro- ceedings in the Legislature of a State within the meaning of Article 212.”

16. Paragraph 8 enables the Chairman or the Speaker

of  a  House  to  make  rules  for  giving  effect  to  the

provisions of the Tenth Schedule. The power conferred

on the Speaker under the Tenth Schedule is enormous.

It is not to be forgotten that the Constitution of India is

a  controlled  constitution.   It  provides  for  checks  and

balances.  Some are fundamentally inherent.  Founding

Fathers had desired, as the debate would reflect, that

the Speaker can be removed by the resolution passed by

majority of all the then members and not by the majority

of the members present and voting. It is to be borne in

mind that at the time of framing of the Constitution the

Tenth Schedule was not in existence in the Constitution.

Certain  grounds  were  mentioned  in  the  Constitution

itself and it has also been provided that if a person is

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disqualified  by  or  under  any  law  made  by  the

Parliament.   Therefore,  it  is  necessary  to  sustain  the

elevated  position  the  Speaker  constitutionally  enjoys

and also have room for constitutional propriety. There

can  be  myriad  situations  in  a  democracy.  The

Constitution,  as  an  organic  instrument,  has  to  be

interpreted  to  meet  all  exigencies.   It  has  to  have

flexibility.  Assuming  the  requisite  members  express

their intention to move the resolution for removal of the

Speaker from the office and immediately the Speaker on

a complaint initiates action under the Tenth Schedule,

and  as  the  resolution  against  the  Speaker  cannot  be

moved  unless  14  days’  notice  period  expires,  the

members can be disqualified within the said period and

the  Speaker  would  gain  an  advantage.  Thus,  it  can

result  in a situation of  constitutional  conflict,  that  is,

the conflict between the status of the Speaker conferred

by the Constitution and the position he has been given

after the constitutional amendment.  The final arbiters

have trusted him regard being had to his constitutional

status. It is the “constitutional trust”. Therefore, there

should  be  perceptibility  of  absence  of  conflict.   That

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apart, it will not be in harmony with Article 179(c) or the

constitutional norm.  It would also cause discord with

the  language  employed  in  the  said  Article.   The

Founding Fathers had deliberately  retained the words

“all  the  then  members”,  by  negativing  the  proposed

amendment.   The  purpose  of  not  accepting  the

amendment is to preserve the constitutional control over

the situation.

17.  In this regard, I may usefully refer to Article 189 of

the Constitution. It provides for voting in Houses, power

of  Houses  to  act  notwithstanding  vacancies  and

quorum.  Sub-Article (1) of  Article 189 stipulates that

save  as  otherwise  provided  in  the  Constitution,  all

questions at any sitting of a House of the legislature of a

State shall be determined by a majority of votes of the

members present and voting, other than the Speaker or

Chairman,  or  person  acting  as  such.   The  said

sub-Article also provides that Speaker or Chairman or

person  acting  as  such  shall  not  vote  in  the  first

instance, but shall have and exercise a casting vote in

the case of  an equality of  votes.  The said sub-Article,

thus, clearly states about the majority of  votes of  the

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members present and voting and secondly, it empowers

the Speaker to exercise his power of voting in case of

equality  of  votes.  In  contradistinction  to  the  same,

Article 181 provides that Speaker or the Deputy Speaker

not  to  preside  while  resolution  for  his  removal  from

office is under consideration and he is entitled to vote in

the first instance on such resolution but not in the case

of an equality of votes.  Article 181(2) which is relevant

for the present purpose reads as follows:-

“(2) The Speaker shall have the right to speak in, and otherwise to take part in the proceed- ings of, the Legislative Assembly while any res- olution  for  his  removal  from  office  is  under consideration in the Assembly and shall, not- withstanding anything in Article 189, be enti- tled to vote only in the first instance on such resolution or on any other matter during such proceedings but not in the case of an equality of votes.”

18. The  purpose  of  referring  to  the  said  Article  is  to

highlight  the  nature  of  participation  of  the  Speaker

when the question of his removal arises.  It  is clearly

different.  Under the Constitution he is entitled to take

part in the proceedings and speak. Therefore, he is in a

position  to  contest.    Appreciating  the  scheme of  the

Constitution and especially keeping in view the language

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employed in the first proviso to Article 179(c) it is 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.  

19. In  this  regard,  it  is  essential  to  understand  the

character of the Tenth Schedule. The Tenth Schedule to

the Constitution has conferred adjudicatory powers on

the Speaker.  While deliberating on the constitutionality

of the said Schedule, the majority in  Kihota Hollohon

v. Zachilhu and others25, has stated that:-

“[G] The Speakers/Chairmen while exercising powers and discharging functions under  the Tenth Schedule act as Tribunal adjudicating rights  and  obligations  under  the  Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of  a  decision  by  the  Speakers/Chairmen. Having  regard  to  the  constitutional intendment and the status of the repository of the adjudicatory power, no  quia timet actions are  permissible,  the  only  exception  for  any interlocutory  interference  being  cases  of interlocutory disqualifications or suspensions which  may  have  grave,  immediate  and irreversible repercussions and consequence.

[H] That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the

25  (1992) 1 SCC 309 237

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decision  of  the  Speakers/Chairmen  is  valid. But the concept of statutory finality embodied in  paragraph  6(1)  does  not  detract  from  or abrogate  judicial  review  under  Articles  136, 226  and  227  of  the  Constitution  insofar  as infirmities  based  on  violations  of constitutional  mandates,  mala  fides, non-compliance with rules of Natural Justice and perversity, are concerned.

[I]  That  the  deeming  provision in  paragraph 6(2)  of  the  Tenth  Schedule  attracts  an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and  explained  in  Keshav  Singh  case26 to protect the validity of proceedings from mere irregularities  of  procedure.  The  deeming provision,  having  regard  to  the  words  “be deemed to  be  proceedings  in  Parliament”  or “proceedings  in  the  legislature  of  a  State” confines the scope of the fiction accordingly.

[J]  That  contention  that  the  investiture  of adjudicatory  functions  in  the Speakers/Chairmen would by itself vitiate the provision  on  the  ground  of  likelihood  of political bias is unsound and is rejected.  The Speakers/Chairmen hold a pivotal position in the scheme of  parliamentary democracy and are guardians of  the rights and privileges of the House. They are expected to and do take far  reaching  decisions  in  the  functioning  of parliamentary democracy.  Vestiture of  power to  adjudicate  questions  under  the  Tenth Schedule in such constitutional functionaries should not be considered exceptionable”.

(Emphasis added)

26 (1965) 1 SCR 413 : AIR 1965 SC 745 238

Page 239

20. The  aforesaid  reasoning  eloquently  speaks  of  the

power, position and the status the office of the Speaker

enjoys under the Constitution.  It also states about the

scope of the fiction. The Court has constricted the power

of judicial review and restricted it to the stage carving

out  certain  extreme  exceptions.  It  is  because  the

Speaker,  while  exercising  the  authority/jurisdiction,

exercises  the  power  of  “constitutional  adjudication”.

The  concept  of  constitutional  adjudication  has

constitutional value in a parliamentary democracy; and

constitutional  values  sustain  the  democracy  in  a

sovereign  Republic.   The  Speaker  is  expected  to

maintain  propriety  as  an  adjudicator.   The  Speaker

when  functions  as  a  tribunal  has  the

jurisdiction/authority  to  pass  adverse  orders.   It  is

therefore, required that his conduct should not only be

impartial but such impartiality should be perceptible. It

should  be  beyond  any  reproach.   It  must  reflect  the

trust reposed in him under the Constitution. Therefore,

the power which flows from the introduction of  Tenth

Schedule by constitutional amendment is required to be

harmoniously construed with Article 179(c).  Both the

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provisions of the Constitution are meant to subserve the

purpose of  sustenance of  democracy which is  a basic

feature  of  the  Constitution.   The  majority  in  Manoj

Narula  v.  Union  of  India27  where  speaking  about

democracy  has  opined  that  democracy  in  India  is  a

product of the rule of law and it is not only a political

philosophy  but  also  an  embodiment  of  constitutional

philosophy.

21. Thus, regard being had to the language employed in

Article 179 (c) of the Constitution and the role ascribed

to the Speaker under the Tenth Schedule, it is necessary

that the Speaker as a  tribunal has to have complete

detachment and perceivable impartiality.  When there is

an  expression  of  intention  to  move  the  resolution  to

remove him, it is requisite that he should stand the test

and  then proceed.   That  is  the  intendment  of  Article

179(c) and the said interpretation serves the litmus test

of sustained democracy founded on Rule of Law; and the

Founding  Fathers  had  so  intended  and  the

constitutional value, trust and morality unequivocally so

suggest.  It  would  be  an  anathema  to  the  concept  of

27 (2014) 9 SCC 1 240

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constitutional adjudication, if the Speaker is allowed to

initiate  proceeding  under  the  Tenth  Schedule  of  the

Constitution  after  intention  to  remove  him  from  his

office  is  moved.   The  fourteen  days'  period  being

mandatory, the words “all the then members” gain more

significance.   The  Constitution  has  confidence  in  the

Speaker. I would like to call it “repose of constitutional

confidence”.  Simultaneously, the command is to have

the  confidence  of  the  majority  of  the  “actual  or  real

figure”.   This  understanding  is  gatherable  from  the

express  provisions  of  the  Constitution  and  it  clearly

brings in harmony between “constitutional  confidence”

or trust  and the “constitutional  control”.  Be it  stated,

the  position  has  to  remain  the  same  even  after

introduction of the Tenth Schedule to sustain the robust

vitality  of  our growing Constitution.   And it  embraces

the seminal spirit of the “Rule of Law” that controls all

powers, even the prerogative powers.

22. Before  parting,  I  may  state  that  constitutional

restraint and discipline are revealed from the words of

the Constitution and the high constitutional functionary

should  remain  embedded  to  the  same  with  humility,

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because  it  is  humility  that  forms  the  “foundation  of

regard”28. It is the ultimate  constitutional virtue.  

.............................J.  (Dipak Misra)

New Delhi; July 13, 2016

28 Laozi, 570-490 BCE 242

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6203-6204 OF 2016  (Arising out of S.L.P. (C) Nos.1259-60 of 2016)

Nabam Rebia And Etc.                       .… Appellants

         versus

The Deputy Speaker & Others                                    .… Respondents  

J U D G M E N T

Madan B. Lokur, J.

1. Leave granted.

2. The draft judgment prepared by my learned Brother Justice Khehar

details all the facts of the case and considers all the submissions made by

learned counsel for the parties.  I have had the benefit of going through the

detailed  draft  judgment.  I  am in general  agreement  with  the conclusions

arrived  at  on  the  interpretation  of  Article  163  and  Article  174  of  the

Constitution.  However, my reasons for arriving at the same conclusions are

somewhat different and partly additional or supplementary, necessitating an

expression of my views.  I have also gone through the draft judgment of my

learned Brother Justice Dipak Misra and in the view that I have taken, it is

not necessary for me to expression any opinion on his conclusions.

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3. As  far  as  the  interpretation  of  Article  175  of  the  Constitution  is

concerned, I am of opinion that 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 is 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.

4. The interpretation of  Article  179 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.

5. With  regard  to  the  interpretation  of  the  Tenth  Schedule  of  the

Constitution and the decision of the Speaker of the Legislative Assembly of

Arunachal Pradesh, that too is unnecessary in view of the decision rendered

by the Gauhati High Court in  Pema Khandu v. The Speaker, Arunachal

Pradesh Legislative Assembly29 -  the decision having been delivered after

judgment was reserved in these appeals.

6. The  questions  that  arise  for  consideration,  in  my  opinion,  are  the

following:

Whether,  after  having  notified  the  dates  of  sitting  of  the  Legislative

Assembly in consultation with the Chief Minister and the Speaker of the

House, the Governor of Arunachal Pradesh could cancel those dates in 29 MANU/GH/0118/2016 [decided on 30th March, 2016]

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the exercise of ‘power’ under Article 174(1) of the Constitution and in

the exercise of discretion under Article 163 of the Constitution?  

Whether,  after  having  notified  the  dates  of  sitting  of  the  Legislative

Assembly in consultation with the Chief Minister and the Speaker of the

House, the Governor of Arunachal Pradesh could unilaterally alter and

reschedule those notified dates in the exercise of ‘power’ under Article

174(1) of the Constitution read with Article 163 of the Constitution by

issuing a fresh notification?  

Whether generally, in the exercise of discretion under Article 163(1) of the

Constitution  read  with  Article  174(1)  of  the  Constitution  and

notwithstanding the relevant rules framed by the Legislative Assembly

under  Article  208  of  the  Constitution,  the  Governor  of  Arunachal

Pradesh could summon the Legislative Assembly without consulting the

Chief Minister and the Speaker of the House?

Whether  the message  sent  by  the Governor  of  Arunachal  Pradesh on 9th

December,  2015  under  Article  175(2)  of  the  Constitution  was  a

constitutionally valid message that ought to have been (and was) acted

upon by the Legislative Assembly?

Historical background of Article 163 of the Constitution

7. Article 163 of the Constitution traces its origins first to Section 50 of

the  Government  of  India  Act,  1935 and then to  Article  143 in  the  draft

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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. This was the view expressed by Mr.

Herbert Williams:     

“I beg to move, in page 7, line 3, to leave out Sub-section (3).

I  take it,  Sir Dennis, that you have selected this particular  Amendment because it enables us to discuss all the major problems which arise under this Clause—the problems of the relationship of the Governor-General to his ministers. There are in the Sub-section the words “in his discretion,” and also the words “his individual judgment.” I want to be clear that I have interpreted the significance of these words accurately, and perhaps the  Secretary  of  State  will  be  good  enough  to  contradict  me  if  I  am inaccurate. I gather that when the Governor-General acts in his discretion it is a case where he acts without being under the obligation of consulting his ministers at all, and that he acts perfectly freely. On the other hand, when  he  exercises  his  individual  judgment,  that  is  a  case  where  he consults  his  ministers  but  is  not  obliged  to  take  their  advice,  and, therefore,  his  final  decision  may  or  may  not  disagree  with  the  advice tendered  to  him  by  his  ministers.  I  hope  that  I  have  got  the  correct interpretation,  because it  is necessary in discussing this  most important constitutional issue that we should be all quite clear as to the meaning of the words we are using. As my interpretation has not been challenged, I assume that I have correctly interpreted the significance of these words.”32

9. This  view was sought  to  be made more explicit  by Mr. Bailey by

adding sub-section (4) to Section 9 of the Government of India Act, 1935 in

the following words:  

“I beg to move, in page 7, line 12, at the end, to add: “(4) (i) In this Act the expression  'in  his  discretion'  when  applied  to  any  act  of  the Governor-General or any exercise of his functions or powers means that such act may be done and such functions and powers may be exercised by the  Governor-General  without  consultation  with  his  Ministers.” “(ii)  In this Act the expression 'his individual judgment,' when applied to any act of the Governor-General or any exercise of his functions or powers, means that  such  act  may  be  done  and  such  functions  and  powers  may  be exercised  by  the  Governor-General  only  after  consultation  with  his

32 HC Deb 28 February 1935 vol 298 cc1327-63

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Mr. Churchill sought a clarification to the effect that if there is a break-down

of communications between the Governor-General and his Ministers, then

the  Governor-General  could “act  freely”  that  is  to  say  that  he would  be

discharged of the obligation to seek the aid and advise of the Ministers.  The

Solicitor-General affirmed that this is so and that he could “proceed to act on

his own responsibility.”36  

Independence and the Constituent Assembly

13. After Independence, there was no intention to permit the Governor to

exercise any discretion or to take any decision in his individual judgment.

This is clear from the India (Provisional Constitution) Order, 1947 issued in

exercise of powers conferred by Section 9(1)(c) of the Indian Independence

Act,  1947.  Paragraph 3(2) of  the India (Provisional  Constitution) Order,

1947 explicitly  deletes  the  expressions  “in his  discretion”,  “acting  in  his

discretion” and “exercising his individual judgment” wherever they occur in

the Government of India Act, 1935.  Paragraph 3(1) and paragraph 3(2) of

the India (Provisional Constitution) Order, 1947 read as follows:

“3(1)  As from the  appointed  day, the  Government  of  India  Act,  1935, including the provisions of that Act which have not come into force before the  appointed  day and the  India  (Central  Government  and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent Assembly of India, apply to India with the omissions,  additions,  adaptations  and  modifications  directed  in  the following provisions of this paragraph and in the Schedule to this Order.

(2)  The  following  expressions  shall  be  omitted  wherever  they  occur, namely, “in his discretion”, “acting in his discretion” and “exercising his individual judgment”.”

36 Sir Alladi Krishnaswamy Aiyar also refers to the “breakdown provisions” as brought out subsequently in  this judgment.

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14. Apart from this explicit expression of intent, the overall distinction

between  the  two  expressions  “in  his  discretion”  and  “his  individual

judgment”  was  understood  and  accepted  by  Sir  B.N.  Rau37 who,  in  his

address to I.A.S. probationers in New Delhi in June, 1948 said in the context

of the Government of India Act, 1935:

“There were, however, certain matters in respect of which the Governor was required to act in his discretion without having to consult his ministers at  all  and certain other  matters in respect of which he was required to exercise his individual judgment, though bound to consult his ministers. In regard to both these classes of matters,  the Governor was under the general control of the Governor-General, who, in his turn, was under the general control of the Secretary of State and, therefore, of the Parliament in England.  The area of responsible government in the provinces was thus restricted  to  some extent,  though  not  to  the  same  extent  as  under  the Government of India Act of 1919.”

Later, in his address, he added: “The framers of the Government of India Act of 1935 presumably foresaw that the distinction, which they had attempted to draw between the matters in respect of which the Governor was required to act on the advice of his Council of Ministers and those in respect of which he was not so required, would disappear in practice, unless special provision was made to resolve any  consequential  deadlocks.   Accordingly, the  Act  gave  power  to  the Governor,  acting  with  the  concurrence  of  the  Governor-General  and subject  to  certain  other  safeguards,  to  proclaim –  what  amounted  to  a suspension of responsible government in the province – that government could not be carried on in accordance with the provisions of the Act.”38

15. As mentioned above, Article 143 in the draft Constitution corresponds

to  Section  50  of  the  Government  of  India  Act,  1935  and  this  reads  as

follows:

“Article  143 (1) There shall  be a  Council  of  Ministers  with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

37 Constitutional Adviser to the Constituent Assembly 38 These quotations have been taken from “India’s Constitution in the Making” by Sir Benegal Rau (Edited  by B. Shiva Rao), Allied Publishers Private Limited, pages 351 and 352  

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(2)  If  any  question  arises  whether  any matter  is  or  is  not  a  matter  as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not have acted in his discretion.  

(3)  The question whether  any, and if  so what,  advice was tendered  by Ministers to the Governor shall not be inquired into in any court.”      

16. It is significant and necessary to note that (as expected) the expression

“his individual judgment” did not find mention in Article 143 in the draft

Constitution. This is as clear an indication as any that the framers of our

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.  

17. Article  143  of  the  draft  Constitution  was  the  subject  matter  of

discussion in the Constituent Assembly on 1st June, 1949. In response to the

ongoing debate, Mr. Krishnamachari expressed the view that the retention of

discretionary powers with the Governor was necessary, subject to discussion

at the appropriate stage, when other Articles of the draft Constitution would

be  discussed.  The  only  issue  was  whether  the  mention  of  discretionary

powers should be in Article 143 of the draft Constitution or in the specific

Article(s).  He was of opinion that it should be mentioned in Article 143 of

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the  draft  Constitution.  The  view expressed  by  Mr. Krishnamachari  is  as

follows:

“Sir,  it  is  no  doubt  true  that  certain  words  from  this  article  may  be removed, namely, those which refer to the exercise by the Governor of his functions  where  he has  to  use his  discretion  irrespective  of  the  advice tendered  by  his  Ministers.  Actually,  I  think  this  is  more  by  way  of  a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the articles that occur subsequently, or to leave out any mention of this power here and only state it in the appropriate article. The former method has been followed.  Here  the  general  proposition  is  stated  that  the  Governor  has normally  to  act  on the advice  of  his  Ministers  except  in  so far  as  the exercise of his discretions covered by those articles in the Constitution in which he is specifically empowered to act in his discretion.  So long as there are articles occurring subsequently in the Constitution where he is asked  to  act  in  his  discretion,  which  completely  cover  all  cases  of departure from the normal practice to which I see my honourable Friend Mr. Kamath has no objection, I may refer to article 188, I see no harm in the provision in this article being as it is. If it  happens that this House decides that in all the subsequent articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude……... If it is necessary for the House either to limit the discretionary power of the Governor or completely do away with it, it could be done in the articles that occur subsequently where specific mention is made without which this power that is mentioned here cannot at all be exercised. That is the point that I would like to draw the attention of the House to and I think the article had better be passed as it is.”39

18. Dr.  Ambedkar  supported  the  view  of  Mr.  Krishnamachari  and  in

response to the debate, he stated as follows:

“The Honourable Dr. B.  R.  Ambedkar:  Mr. President,  Sir,  I  did  not think that it would have been necessary for me to speak and take part in this debate after what my Friend, Mr. T. T. Krishnamachari, had said on this  amendment  of  Mr.  Kamath,  but  as  my  Friend,  Pandit  Kunzru, pointedly asked me the question and demanded a reply, I thought that out of  courtesy  I  should  say  a  few  words.  Sir,  the  main  and  the  crucial question  is,  should  the  Governor  have  discretionary  powers?  It  is  that question which is the main and the principal question. After we come to some decision on this question, the other question whether the words used in the last part of clause (1) of article 143 should be retained in that article

39 Constituent Assembly Debates, Vol.8, 1949, pp.490-491 253

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or should be transferred somewhere else could be usefully considered. The first  thing,  therefore,  that  I  propose  to  do  is  to  devote  myself  to  this question which, as I said, is the crucial question. It has been said in the course  of  the  debate  that  the  retention  of  discretionary  power  in  the Governor is contrary to responsible government in the provinces. It has also been said that the retention of discretionary power in the Governor smells  of  the  Government  of  India  Act,  1935,  which  in  the  main  was undemocratic. Now, speaking for myself, I have no doubt in my mind that the  retention  in  on the vesting the Governor  with  certain  discretionary powers is in no sense contrary to or in no sense a negation of responsible government. I do not wish to rake up the point because on this point I can very  well  satisfy  the  House  by  reference  to  the  provisions  in  the Constitution of Canada and the Constitution of Australia. I do not think anybody  in  this  House  would  dispute  that  the  Canadian  system  of government  is  not  a  fully  responsible  system of  government,  nor  will anybody in this House challenge that the Australian Government is not a responsible form of government. ……….

Pandit Hirday Nath Kunzru: Well, Dr. Ambedkar has missed the point of the criticism altogether. The criticism is not that in article 175 some powers might not be given to the Governor, the criticism is against vesting the Governor with certain discretionary powers of a general nature in the article under discussion.

The Honourable Dr. B. R. Ambedkar: I think he has misread the article. I am sorry I do not have the Draft Constitution with me. "Except in so far as he is by or under this Constitution," those are the words. If the words were "except  whenever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers", then I think the criticism made by my honourable Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says: "except in so far as he is by or under this Constitution". Therefore, article 143 will  have to be read in conjunction with such other articles  which specifically  reserve  the  power to  the  Governor. It  is  not  a  general clause  giving  the  Governor  power  to  disregard  the  advice  of  his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my honourable Friend, Pandit Kunzru. (Emphasis is given by me).

Therefore, as I said, having stated that there is nothing incompatible with the retention of the discretionary power in the Governor in specified cases with the system of responsible Government, the only question that arises is, how should we provide for the mention of this discretionary power? It seems to me that there are three ways by which this could be done. One way is to omit the words from article 143 as my honourable Friend, Pandit Kunzru, and others desire and to add to such articles as 175, or 188 or such other provisions which the House may hereafter introduce, vesting the Governor with the discretionary power, saying notwithstanding article 143, the Governor shall have this or that power. The other way would be to  say  in  article  143,  "that  except  as  provided  in  articles  so  and  so specifically mentioned-articles 175, 188, 200 or whatever they are". But

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the point  I  am trying to submit  to the House is  that  the House cannot escape  from mentioning  in  some manner  that  the  Governor  shall  have discretion.

Now  the  matter  which  seems  to  find  some  kind  of  favour  with  my honourable Friend, Pandit Kunzru and those who have spoken in the same way  is  that  the  words  should  be  omitted  from  here  and  should  be transferred  somewhere  else  or  that  the  specific  articles  should  be mentioned in article 143. It seems to me that this is a mere method of drafting. There is no question of substance and no question of principle. I personally  myself  would  be quite  willing  to  amend  the  last  portion  of clause (1) of article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not as yet come either to article 175 or 188 nor have we exhausted all the possibilities  of other provisions being made, vesting the Governor with discretionary power. If I knew that, I would very readily agree to amend article  143 and to mention the specific  article,  but that cannot be done now. Therefore,  my submission is  that  no wrong could  be done if  the words as they stand in article 143 remain as they are. They are certainly not inconsistent.

Shri H. V. Kamath: Is there no material difference between article 61(1) relating to the President vis-à-vis his ministers and this article?

The Honourable Dr. B. R. Ambedkar: Of course there is, because we do not want to vest the President with any discretionary power. Because the provincial  Governments  are  required  to  work  in  subordination  to  the Central  Government,  and therefore,  in  order  to  see  that  they do act  in subordination to the Central Government the Governor will reserve certain things in order to give the President the opportunity to see that the rules under which the provincial Governments are supposed to act according to the  Constitution  or  in  subordination  to  the  Central  Government  are observed.”40

19. On  the  basis  of  the  above  discussion,  Article  143  of  the  draft

Constitution was approved as it is and is now Article 163 in the Constitution.

Conclusions on Article 163 of the Constitution

20. The sum and substance of the historical background leading to Article

163 of the Constitution, as enacted, is this: (i) 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 40 Constituent Assembly Debates, Vol.8, 1949, pp.500-502

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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. (ii) If the exercise of function is beyond the purview of the aid and

advice of the Council of Ministers but is  by or  under the Constitution, the

Governor can act “in his discretion”. Article 163(2) of the Constitution will

have reference only to the last part of Article 163(1) of the Constitution and

is not all-pervasive.

21. If there is a break-down in communications between the Council of

Ministers  and  the  Governor  (as  imagined  by  Mr.  Churchill),  then  the

Governor will not have the benefit of the aid and advice of the Council of

Ministers.  In that event,  the Governor may “take the matter into his own

hands and act freely.” The break-down of communications was a possibility

under  the  Government  of  India  Act,  1935  since  it  was  “in  the  main

undemocratic” and there could be a break-down of communications between

the representative of His Majesty and the Council of Ministers. However, if

such  a  situation  were  to  arise  today  in  independent  India,  namely,  a

break-down of communications between the Governor of a State and the

Council of Ministers, it would be most unfortunate and detrimental to our

democracy.  In  the  unlikely  event  of  a  complete  break-down  of

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communications,  the  President  can  and  must  intervene  to  bring  in

constitutional order.  

Historical background of Article 174 of the Constitution

22. Article 174(1) of the Constitution has its historical origin in Section

62 of the Government of India Act, 1935. This section reads as follows:

62. (l) The Chamber or Chambers of each Provincial Legislature shall be summoned to meet once at least in every year, and twelve months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session  

(2)  Subject  to  the  provisions  of  this  section,  the  Governor  may in  his discretion from time to time-  (a) summon the Chambers or either Chamber to meet at  such time and place as he thinks fit ;  (b) prorogue the Chamber or Chambers;  (c) dissolve the Legislative Assembly.  

(3) The Chamber or Chambers shall be summoned to meet for the first session of the Legislature  on a day not  later  than six months  after  the commencement of this Part of this Act.

23. 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.41  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.

41 Section 50(2) of the Government of India Act, 1935 which reads: The Governor in his discretion may  preside at meetings of the council of ministers.

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24. In the Constituent Assembly, Article 153 of the draft Constitution as

on 21st February, 1948 substituted Section 62 of the Government of India

Act, 1935 with the following:  

153.  (1)  The House or  Houses of the Legislature  of the State  shall  be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.

(2) Subject to provisions of this article, the Governor may from time to time –  (a) summon the House or either House to meet at such time and place as he thinks fit;  (b) prorogue the House or Houses;  (c) dissolve the Legislative Assembly.  

(3) The functions of the Governor under sub-clauses (a) and (c) of clause (2) of this article shall be exercised by him in his discretion.  

25. The  expression  “in  his  discretion”  finds  mention  in  clause  (3)  of

Article 153 of the draft Constitution. It could be said, on a consideration of

the  debate  on  this  expression  in  the  House  of  Commons  and  in  the

Constituent Assembly, that the Governor’s powers under Article 153 of the

draft Constitution were sought to be kept outside the purview of the Council

of Ministers and exercisable “in his discretion”. In other words, it could be

said  that  while  exercising  his  powers  under  Article  153  of  the  draft

Constitution, the Governor was not obliged to consult or take the aid and

advice of his Council of Ministers.   

26. This Article was very briefly debated in the Constituent Assembly on

2nd June, 1949 and Dr. Ambedkar moved for the omission of clause (3) in

this  Article.  The  amendment  proposed  by  Dr.  Ambedkar  was  adopted

without  much  discussion.  Thereby,  the  Governor  was  disentitled  from

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summoning the House or either House “in his discretion”. Article 153 as

amended was then adopted and formed a part of the Constitution. What was

the reason for this omission? The answer is to be found in the debate on

Article 69 of the draft Constitution on 18th May, 1949 (to which a reference

was made in the debates).

27. Article 69 of the draft Constitution is more or less similar to Article

153 of the draft Constitution [except as regards the omitted clause (3)] and it

provides as follows:

69. (1) The Houses of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date  appointed  for  their  first  sitting in the next session.

(2) Subject to provisions of this article, the President may from time to time –  (a) summon the Houses or either House of Parliament to meet at such time and place as he thinks fit;  (b) prorogue the Houses;  (c) dissolve the House of the People.  

28. During the course of the debate on Article 69 of the draft Constitution,

Prof. K.T. Shah suggested two amendments. Dr. Ambedkar responded to the

amendments proposed by stating,  inter alia, that the business of the House

has to be provided by the Executive and if the President does not summon

the House, the necessary implication is that the Executive has no business to

place before the House for transaction. Therefore, if anybody other than the

Prime Minister required the President to summon the House, there would be

no business to transact and summoning the House without any business to

transact  would  be  a  futile  operation.  I  would  imagine  that  for  the  same

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reason, the President cannot  suo moto summon the House, for there would

be no business to transact and suo moto summoning the House without any

business to transact would also be a futile operation. On the other hand, if

the Prime Minister proposed to the President to summon the Legislature and

he  did  not  do  so,  the  President  would  be  violating  the  Constitution  and

would need to be displaced. This is what Dr. Ambedkar said:  

“Then I  take the two other amendments  of Prof.  Shah (Nos.  1473 and 1478). The amendments as they are worded are rather complicated. The gist of the amendments is this. Prof. Shah seems to think that the President may fail to summon the Parliament either in ordinary times in accordance with the article or that he may not even summon the legislature when there is  an  emergency.  Therefore  he  says  that  the  power  to  summon  the legislature  where  the  President  has  failed  to  perform his  duty must  be vested either in the Speaker of the lower House or in the Chairman or the Deputy Chairman of the Upper House.  That is,  if I  have understood it correctly, the proposition  of  Prof.  K.T. Shah.  It  seems to  me that  here again Prof. Shah has entirely misunderstood the whole position. First of all,  I  do  not  understand  why  the  President  should  fail  to  perform  an obligation which has been imposed upon him by law. If the Prime Minister proposes  to  the  President  that  the  Legislature  be  summoned  and  the President, for no reason, purely out of wantonness or cussedness, refuses to summon it, I think we have already got very good remedy in our own Constitution to displace such a President. We have the right to impeach him,  because  such  a  refusal  on  the  part  of  the  President  to  perform obligations  which have been imposed upon him would be undoubtedly violation of the Constitution. There is therefore ample remedy contained in that particular clause.

But,  another  difficulty  arises  if  we  are  to  accept  the  suggestion  of Professor K.T. Shah. Suppose for instance the President for good reasons does not summon the Legislature and the Speaker and the Chairman do summon the Legislature. What is going to happen? If the President does not summon the Legislature it means that the Executive Government has no business which it can place before the House for transaction. Because, that is the only ground on which the President, on the advice of the Prime Minister, may not call the Assembly in session. Now, the Speaker cannot provide business for the Assembly, nor can the Chairman provide it. The business has to be provided by the Executive, that is to say, by the Prime Minister who is going to advise the President to summon the Legislature. Therefore, merely to give the power to the Speaker or the Chairman to summon the Legislature without making proper provisions for the placing of business to be transacted by such an Assembly called for in a session by

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the Speaker or the Chairman would to my mind be a futile operation and therefore no purpose will be served by accepting that amendment.”42

29. Keeping the debate on Article 69 of the draft Constitution in mind

(particularly  since  the  business  of  the  House  is  to  be  provided  by  the

Executive)  Article  153 of  the  draft  Constitution  did  not  provide  for  any

discretion to the Governor, as proposed by Dr. Ambedkar, to summon the

House for a “futile operation”.

30. Article 69 of the draft Constitution was adopted as Article 85 of the

Constitution and this reads as follows:

“85.  Sessions  of  Parliament,  Prorogation  and  dissolution - (1)  The Houses of Parliament shall be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.

(2) Subject to the provisions of clause (1), the President may from time to time - (a) summon the Houses or either House to meet at such time and place as he thinks fit; (b) prorogue the Houses; (c) dissolve the House of the People.”

31. Similarly, Article 153 of the draft Constitution was adopted as Article

174 of the Constitution in the following form:

“174.  Sessions of the State Legislature, Prorogation and dissolution - (1)   The  House  or  Houses  of  the  Legislature  of  the  State  shall  be summoned to meet twice at least in every year, and six months shall not intervene between their last sitting in one session and the date appointed for their first sitting in the next session.

(2) Subject to the provisions of clause (1), the Governor may from time to time –  (a) summon the House or either House to meet at such time and place as he thinks fit ;  (b) prorogue the House or Houses;  (c) dissolve the Legislative Assembly.”

42 Constituent Assembly Debates, Vol.8, 1949, p.106 261

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32. The absence of any discretion in the President to summon or prorogue

the House or dissolve the House of the People and the deletion of clause (3)

in Article 153 of the draft Constitution makes it quite clear that 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.  

Need to amend Article 85 and Article 174 of the Constitution

33. As luck would have it,  the then Members of Parliament took their

parliamentary duties and obligations with utmost sincerity and seriousness

and so  the  actual  working of  Article  85  of  the  Constitution  posed some

problems. This led to the First Amendment to the Constitution.     

34. The  parliamentary  debate  of  16th May, 1951  shows  that  when  the

Constitution  (First  Amendment)  Bill  was  moved  by  Prime  Minister

Jawaharlal  Nehru, he pointed out that Parliament had been in continuous

session since November (1950) and the session was likely to carry on. Under

these   circumstances,  some “acute  interpreters”  might hold the view that

Parliament had not met in 1951 strictly in terms of the Constitution since

Parliament had not been prorogued and the President had not addressed it.

This would lead to a curious situation that if Parliament met continuously,

then it could be interpreted that Parliament had not met at all! This is what

he said:

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“[O]ne of the articles - for the moment - I forget the number - lays down that this House should meet twice a year and the President should address it.  Now a possible interpretation of that is that this House has not met at all  this  year.  It  is  an extraordinary  position  considering  that  time this House has labored more than probably at any time in the previous history of  this  or  the  preceding  Parliament  in  this  country.   We  have  been practically sitting with an interval round about Xmas since November and we are likely to carry on and yet it may be held by some acute interpreters that we have not met at all this year strictly in terms of the Constitution because we started meeting in November and we have not met again - it has not been prorogued - the President has not addressed Parliament this year.  Put it in the extreme way, suppose this House met for the full year without break except short breaks, it worked for 12 months, then it may be said under the strict letter of the law that is has not met at all this year.  Of course that article was mean not to come in the way of our work but to come in the way of our leisure.  It was indeed meant and it must meet at least twice a year and there should not be more than six months’ interval between the meetings.  It did not want any Government of the day simply to sit tight without the House meeting.  Therefore it wanted to compel it by the force of the Constitution and meet at least twice a year but without a big gap.  That again by interpretation leaves the curious situation that if you continue meeting, you do not meet at all!”43

35. When Prime Minister Jawaharlal Nehru replied to the debate on this

aspect on 2nd June, 1951 he reiterated that according to the strict meaning of

Article 85 of the Constitution, Parliament had not “met” at all in 1951 since

it had been summoned in 1950. It was to overcome this difficulty that an

amendment  was  proposed  to  Article  85  of  the  Constitution.  In  another

context,  it  was  pointed  out  that  Article  85  of  the  Constitution  raises  the

questions – who should summon Parliament; who can summon Parliament

and who only can summon Parliament. Giving a reply, he said that under the

Constitution, only the President can summon Parliament and if he does not

do his duty, then other consequences may well arise. Similarly, if Parliament

is  not  summoned  within  six  months,  it  is  a  deliberate  breach  of  the

43 Parliamentary Debates Part II – Proceedings other than Questions and Answers. Official Report Volume  XII, 1951 (15 May 1951 – 6 June 1951). Third Session (Second Part) of Parliament of India, 1951 = (First  Amendment) Bill 16 May 1951 p.8819

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Constitution by the President and the Government of the day. It  must be

presumed  that  some  final  authority  will  function  according  to  the

Constitution and if it does not “then you pick the axe and cut off the head,

whether  he is  a  President  or  anybody.”  This  is  what  was  said  by Prime

Minister Jawaharlal Nehru:

“It was because of this actual difficulty, that it was thought that this article might be changed so that this question of being summoned twice a year need not be there, because if we are meeting all the time, then are we to break up simply to be summoned again? Of course, we may be summoned twice a year or more…………

That is to say, this article 85 actually deals, in the passive and the active, in both the voices,  with who should summon, who can summon and who only can summon - there is no other authority which can summon, unless of course there is a breach of the Constitution and other things come into play.  Therefore, as the Constitution is, it is only the President who can summon  it,  and  if  the  President  does  not  do  his  duty  then  other consequences may well arise. ………

…………  [O]ur  saying,  “the  President  shall  summon”  is  much  more mandatory on the President than saying, as it is said here, “The Houses of Parliament  shall  be  summoned”  and  the  President  shall  do  so.   The meaning  is  the  same but  if  the  President  does  not  summon within  six months it is a deliberate breach of the Constitution by the President and the Government of the day.  It does not require any argument - you catch him immediately  he has  not  done a  duty  laid  down,  which  is  here  an indirect duty.  May be some minor excuse the President may advance, or not.  Therefore, in a sense you bind down the President - and when I say the President I mean the Government of the day which is also bound down by the Constitution to do a certain thing.  If they do not do it then other consequences  follow.  They  have  deliberately  flouted  the  Constitution. What  happens then?  Well,  many things may happen.  Parliament  then presumably  comes  into  conflict  with  the  usurping  Government,  or  the Government that carries on without the goodwill  of Parliament  and the people.  Well, a conflict occurs.  That kind of a thing would, if it occurs, presumably be decided by the normal constitutional means - other means may come into play, one does not know. ……..

…………  After all you have ultimately to have some final authority which you presume will function according to the Constitution.  If it does not then you pick the axe and cut off the head, whether he is a President or anybody.  That is the normal practice in Constitutions: that  is  the  normal  practice  in  revolutions. I  do  not  understand  the middle  practice  of  confusing  a  Constitution  with  a  revolution  and  a revolution  with  a  Constitution.   I  therefore,  submit  that  the  wording

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suggested is the right wording.  It does not endanger the Constitution; it does not give any special or additional powers to the President to come in the way.  Such powers as he gets, such mischief as the future President might do, is always inherent in the nature of things and inherent also in the power  of  the  people  to  put  an  end  to  the  President  who  does  that mischief.” (Emphasis is given by me).44

36. The amendment proposed by Prime Minister Jawaharlal Nehru was

then accepted and Article 85 of the Constitution was amended to read as

follows:

“85.  Sessions  of  Parliament,  prorogation  and  dissolution  -  (1)  The President shall from time to time summon each House of Parliament to meet  at  such time and place  as  he thinks  fit,  but  six months  shall  not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

(2) The President may from time to time - (a) prorogue the Houses or either House; (b) dissolve the House of the People.”

37. The  corresponding  provision  for  the  Legislative  Assembly  for  the

States (Article 174 of the Constitution) was amended to read as follows:

“174. Sessions of the State Legislature, prorogation and dissolution  - (1) The Governor  shall  from time to time summon the House or  each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

(2) The Governor may from time to time - (a) prorogue the House or either House; (b) dissolve the Legislative Assembly.”

38. Although no authority other than the President or the Governor could

summon the House, no discretion was conferred on either of them to do so,

44 Parliamentary Debates Part II – Proceedings other than Questions and Answers. Official Report Volume  XII, 1951 (15 May 1951 – 6 June 1951). Third Session (Second Part) of Parliament of India, 1951 = (First  Amendment) Bill 2 June 1951 p.9957 and 9959

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on his own or suo moto. Clearly, therefore, the President or the Governor can

summon the House only on the aid and advice of the Council of Ministers.   

Conclusions on Article 174 of the Constitution

39. The historical background and the debates pertaining to Article 174

(and Article 85) of the Constitution lead to the conclusion that 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. On a different note, if

the Legislative Assembly does not meet once in six months, there would be a

breach of the Constitution requiring severe sanction.

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40. How do the decisions of this Court interpret these provisions of the

Constitution and is the interpretation in harmony with the intention of the

Constitution framers?

Decisions of this Court

41. The  first  decision  that  needs  to  be  referred  to  is  Rai  Sahib  Ram

Jawaya Kapur v. The State of  Punjab.45 The Constitution Bench of  this

Court  acknowledged the difficulty  in  framing an exhaustive definition of

‘executive  function’ or  ‘executive  power’.  While  acknowledging that  the

separation of powers in our Constitution is not rigid, this Court observed that

one organ of the State cannot assume the functions or powers of another

organ. It was held:

“It  may  not  be  possible  to  frame  an  exhaustive  definition  of  what executive  function  means  and  implies.  Ordinarily  the  executive  power connotes  the  residue  of  governmental  functions  that  remain  after legislative and judicial functions are taken away. The Indian Constitution has  not  indeed  recognised  the  doctrine  of  separation  of  powers  in  its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”

42. Proceeding further in this regard, the functions and responsibilities of

the Executive were briefly mentioned in the following words:

“Our  Constitution,  though  federal  in  its  structure,  is  modelled  on  the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution.”

45 [1955] 2 SCR 225 (5 Judges) 267

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the views of the Constituent Assembly. Moreover, there is a recognition and

acceptance  that  since  the  Council  of  Ministers  enjoys  a  majority  in  the

Legislature,  it  is  in  virtual  control  of  both  the  executive  and  legislative

functions of the Governor. Therefore, the Governor has little or no authority

over  the  Executive  or  the  Legislature,  except  to  the  extent  specifically

provided for in the Constitution.     

45. Soon after the decision rendered in Rai Sahib Ram Jawaya Kapur, a

rather  peculiar  situation  arose  in  the  Calcutta  High  Court.  In  Mahabir

Prasad  Sharma v. Prafulla  Chandra  Ghose46 the  facts  were  rather

complicated.  However, to briefly summarize them it may be stated that in

the perception of  the Governor  of  the State,  Chief  Minister  Ajoy Kumar

Mukherjee had apparently lost the confidence of the Legislative Assembly.

Accordingly,  the  Governor  requested  the  Chief  Minister  to  call  the

Legislative  Assembly  and  prove  his  majority  in  the  House.  The  Chief

Minister was more than once requested to call the Legislative Assembly in

the month of November, 1967 but he declined to do so, on the ground that it

had been decided to call the Legislative Assembly on 18th December, 1967.

46. In view of the Chief Minister’s recalcitrance, the Governor dismissed

him and his Council of Ministers on 21st November, 1967 and appointed P.C.

Ghose as the Chief Minister.  The dismissal of the Chief Minister and the

appointment of P.C. Ghose by the Governor were in apparent exercise of

powers conferred by Article 164(1) of the Constitution.  46 (1968) 72 CWN 328

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47. A petition was filed in  the Calcutta  High Court  for  a  writ  of  quo

warranto to explain the legal basis for the appointment of P.C. Ghose as the

Chief Minister. In this context, it was observed that the dismissal of Ajoy

Kumar Mukherjee as the Chief Minister was beyond the scope of the writ

application  and that  the  validity  of  the  dismissal  arose  only  incidentally.

However,  it  was  later  held  in  the  judgment  that  a  Minister  holds  office

during  the  pleasure  of  the  Governor  and  under  Article  164(1)  of  the

Constitution  the  withdrawal  of  pleasure  is  entirely  the  discretion  of  the

Governor and in view of Article 163(2) of the Constitution that exercise of

discretion cannot be questioned. As far as the appointment of P.C. Ghose is

concerned,  it  was  held  that  there  was  no  restriction  on the  Governor  in

Article 164(1) of the Constitution in the matter of the appointment of the

Chief Minister.  

48. The High Court also took the view that if the Chief Minister and the

Council of Ministers refuse to vacate office after the Legislative Assembly

had expressed no confidence in them, the Governor is entitled to withdraw

his pleasure under Article 164(1) of the Constitution. It was held that the

power of the Governor in this regard is exclusive, absolute and unrestricted

and  cannot  be  called  in  question  in  view  of  Article  163(2)  of  the

Constitution.  The High Court also held that if the Council of Ministers lost

its  majority in the Legislative Assembly, the Governor was not bound to

accept its advice. In this regard, the High Court observed: “Can it be said

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that the Governor is bound to act,  in appointing a Chief Minister, on the

advice  of  the  outgoing  Chief  Minister  who  has  lost  his  majority  in  the

Legislative Assembly as a result of the General Election? I think not.”  In

view of its findings, the High Court held that the appointment of P.C. Ghose

as the Chief Minister was in accordance with law and the Constitution and

could not be called in question.

49. It may be mentioned that a submission was made in the High Court

that in the event of a deadlock between the Governor and the Chief Minister,

a proclamation in terms of Article 356 of the Constitution could be issued by

the President but that line of thought was not carried forward by the High

Court.   

50. In some respects the decision of the Calcutta High Court goes well

beyond the law laid down by this Court in Rai Sahib Ram Jawaya Kapur.

Some of the conclusions are in the nature of sweeping generalizations and in

my opinion Mahabir Prasad Sharma does not lay down the correct law. I

am  in  agreement  with  Justice  Khehar  in  this  regard.   Mahabir  Prasad

Sharma confers excessive powers on the Governor, well beyond his status

as  a  formal  or  constitutional  head  of  the  Executive.  The  decision  also

enables the Governor to unilaterally decide whether a Chief Minister has lost

the majority of the Legislative Assembly or not, a function exclusively of the

Legislative  Assembly.  The  decision  enables  the  Governor  to  take  an

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unchecked decision  “in his  discretion” that  a  Chief  Minister  has lost  the

majority of the Legislative Assembly and then dismiss him.   

51. Reference may now be made to State of Punjab v. Satya Pal Dang47

in which the facts were rather extraordinary.  Briefly, the annual budget of

the State was to be considered by the Legislative Assembly and the Financial

Statement was discussed in the Assembly on 4th, 5th and 6th March, 1968.  On

the  last  day,  following  some  disturbance  in  the  House  and  consequent

disciplinary action, a Resolution was moved expressing no confidence in the

Speaker.  The House granted leave for the discussion and adjourned for the

next day.

52. On 7th March, 1968 the Speaker declared the motion of no confidence

to be unconstitutional and deemed not to have been moved.  Following some

rowdy scenes, the Speaker then adjourned the Assembly for two months that

is  till  6th May,  1968.   Since  the  annual  budget  was  not  adopted  no

expenditure could be made in the State from 1st April, 1968. This led to a

political and financial crisis of sorts.

53. Under these peculiar and extraordinary circumstances, the Governor

prorogued  the  Assembly  on  11th March,  1968  in  exercise  of  his

“constitutional powers” under Article 174(2)(a) of the Constitution. On 13th

March, 1968 the Governor promulgated The Punjab Legislature (Regulation

of Procedure in relation to Financial Business) Ordinance, 1968. Thereafter,

on 14th March, 1968 the Governor summoned the Assembly for 18th March, 47 [1969] 1 SCR 478 (5 Judges)

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1968 in exercise of his ‘constitutional powers’ under Article 174(1) of the

Constitution  and directed  the Assembly, in  exercise  of  his  ‘constitutional

powers’ under Article 175(2) of the Constitution, to consider certain items.

54. When the Assembly met, the Speaker ruled that the House was not

prorogued on 11th March, 1968 but on 18th March, 1968 and ruled that the

proclamation of the Governor dated 14th March, 1968 summoning the House

was illegal and void and that he had no power to re-summon the House once

adjourned.  Therefore, in accordance with the earlier ruling dated 7 th March,

1968 the House stood adjourned for two months from that date.

55. Thereafter,  following  some  disturbance,  uproar  and  furore  in  the

House, the Deputy Speaker occupied the Speaker’s chair and declared the

adjournment by the Speaker null and void. The financial business was then

transacted and completed and two Appropriation Bills and other financial

demands were passed.  The Governor gave his assent to the Appropriation

Bills.

56. Two writ petitions were filed in the Punjab & Haryana High Court

challenging, inter alia, the prorogation and re-summoning of the Assembly,

the Ordinance issued by the Governor on 13th March, 1968 as well as the

Appropriation Acts  to  which the Governor  had given his  assent.   A Full

Bench  of  the  High  Court  unanimously  held  the  prorogation  and

re-summoning of  the  Assembly to  be regular  and legal  and that  the two

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Appropriation  Acts  were  unconstitutional  and  held  by  majority  that  the

Ordinance was also unconstitutional.  

57. The decision  of  the High Court  was  the  subject  matter  of  appeals

before this Court. It was observed that the Governor had two options before

him: (a) To require the Ministers to ask the Speaker to recall the Assembly.

This Court felt that this was attempting the impossible [break-down theory

in play] and (b) To prorogue the Assembly and then re-summon it.

58. Referring to Article 174(2) of the Constitution it was held that it does

not indicate any restrictions on the power of the Governor to prorogue the

House.   However,  whether  a  Governor  is  justified  in  proroguing  the

Legislature  when  it  is  in  session  is  a  question  that  did  not  fall  for

consideration.  What was more in question than the conduct of the Governor

was the bona fides of the Speaker’s ruling adjourning the Assembly for two

months when the Financial Statement and the Budget were on the agenda

and time was running out. No mala fides were attributed to the Governor and

his  power  being untrammeled  by  the  Constitution,  an  emergency  having

arisen, the actions taken by the Governor were perfectly understandable.  It

was also held that the Governor had not only acted properly but in the only

constitutional way open to him and there was no abuse of power nor could

his motives be described as mala fide.

59. This  Court  also held that  the prorogation of  the Assembly became

effective  on  11th March,  1968  when  the  Governor  issued  a  public

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notification.   It  was  also  held  that  the  re-summoning  of  the  Legislature

immediately afterwards was also a step in the right direction and it set up

once again the democratic machinery in the State which had been rudely

disturbed  by  the  Speaker.  In  fact,  the  Governor  restored  parliamentary

Government by adopting the course that he did.  

60. However, while concluding its decision, this Court observed that “The

situation created in the State of Punjab was unique and was reminiscent of

the happenings in the age of the Stuarts.”  Undoubtedly so.  The action of the

Governor was drastic  but  constitutional  and resulted from a desire to set

right a “desperate situation”.  This Court allowed the appeals and set aside

the judgment of the High Court and ordered the dismissal of the two writ

petitions filed in the Punjab & Haryana High Court.

61. The facts in Satya Pal Dang were unique and extraordinary, but it is

important to note that this Court did not consider or even refer to Article 163

of  the  Constitution.  Therefore,  this  decision  really  does  not  take  this

discussion much further and reference to it is really quite futile.

62. The powers of the Governor, including his discretionary powers, came

up for consideration in Samsher Singh v. State of Punjab48 which decision

is of considerable importance. The question before a Bench of seven judges

was whether the Governor exercises his power of appointment and removal

of members of  the Subordinate Judicial  Service under Article 234 of  the

48 (1974) 2 SCC 831 (7 Judges) 275

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Constitution49 personally  or  on  the  aid  and  advice  of  the  Council  of

Ministers. The appellant Samsher Singh contended that the Governor could

exercise his power only personally and relied on  Sardari Lal v. Union of

India50 as well as Article 163(3) of the Constitution.  

63. Chief Justice A.N. Ray (speaking for himself and four other learned

Judges) held that the expression “in his discretion” is used in those Articles

of  the  Constitution  that  confer  special  responsibilities  on  the  Governor.

Reference was made to the deletion of  the expression “in his discretion”

from the draft Constitution in Articles 144(6) [totally omitted], 153(3) [now

Article 174], 175 (proviso) [now Article 200], 188 [totally omitted], 285(1)

and (2) [now Article 316] and paragraph 15(3) of the Sixth Schedule [totally

omitted].  This  was  noted to  be  in  stark  contrast  to  Articles  371-A(1)(b),

371-A(1)(d), 371-A(2)(b) and 371-A(2)(f) as well as paragraphs 9(2) and

18(3)  [since  deleted  on 21st January, 1971]  in  the  Sixth  Schedule  to  the

Constitution which confer special responsibilities on the Governor and use

the  expression  “in  his  discretion”.  In  this  context,  it  was  concluded  in

paragraph 28 of the Report:

“Under  the  Cabinet  system  of  Government  as  embodied  in  our Constitution the Governor is the constitutional or formal head of the State and he exercises  all  his  powers  and functions  conferred  on him by or under the Constitution on the aid and advice of his Council of Ministers save  in  spheres  where  the  Governor  is  required  by  or  under  the Constitution to exercise his functions in his discretion.”

49 234. Recruitment of persons other than district judges to the judicial service.—Appointments of  persons other than district judges to the judicial service of a State shall be made by the Governor of the  State in accordance with rules made by him in that behalf after consultation with the State Public Service  Commission and with the High Court exercising jurisdiction in relation to such State. 50 (1971) 1 SCC 411 (5 Judges)  

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64. Explaining this, and referring to English constitutional law, which is

incorporated in our Constitution, it was held in paragraph 32 of the Report:

“It is a fundamental principle of English Constitutional law that Ministers must  accept  responsibility  for  every  executive  act.  In  England  the Sovereign  never  acts  on  his  own  responsibility.  The  power  of  the Sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English Constitutional law is incorporated in our Constitution. The Indian Constitution envisages a Parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the constitutional head are not different.”

A minor  point  of  departure  was  noticed  in  paragraph  44  of  the  Report

wherein it  was held that  there is no distinction between functions of  the

Union (or State) and the functions of the President (or Governor) except in

respect of those functions that the Governor has to exercise in his discretion.

This reads as follows:

“The distinction made by this Court between the executive functions of the Union and the executive functions of the President does not lead to any conclusion that the President is not the constitutional head of Government. Article 74(1) provides for the Council of Ministers to aid and advise the President in the exercise of his  functions.  Article  163(1) makes similar provision  for  a  Council  of  Ministers  to  aid  and  advise  the  Governor. Therefore, whether the functions exercised by the President are functions of the Union or the functions of the President  they have equally to be exercised with the aid and advice of the Council  of Ministers,  and the same is true of the functions of the Governor except those which he has to exercise in his discretion.”

65. In this background and context, it was noted that when the Governor

exercises his functions and powers with the aid and advice of the Council of

Ministers, he does so by making rules for the more convenient transaction

and  allocation  of  business  in  accordance  with  Article  166(3)  of  the

Constitution.  Consequently,  the  decision  rendered  in  Sardari  Lal was

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required to be overruled (and it was overruled) and it was held in paragraph

48 of the Report after referring to Rai Sahib Ram Jawaya Kapur:

“The President  as  well  as  the Governor  is  the constitutional  or  formal head.  The President  as  well  as  the  Governor  exercises  his  powers  and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required  by  or  under  the  Constitution  to  exercise  his  functions  in  his discretion.  Wherever  the  Constitution  requires  the  satisfaction  of  the President  or  the  Governor  for  the  exercise  by  the  President  or  the Governor  of  any  power  or  function,  the  satisfaction  required  by  the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer  under  Rules  of  Business  made under  any of  these two Articles 77(3)  and  166(3)  is  the  decision  of  the  President  or  the  Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or officer under the Rules of Business is the decision of the President or the Governor.”

66. On the issue of discretionary powers of the Governor, paragraph 54 of

the Report is important and the shift in bearing responsibility is referred to in

paragraph 55 of the Report in the context of Article 356 of the Constitution

with the final decision on the report of the Governor being with the President

acting on the aid and advice of  his  Council  of  Ministers.  In  this  overall

context, it was, in a sense, reiterated that: “The Constitution does not aim at

providing  a  parallel  administration  within  the  State  by  allowing  the

Governor to go against the advice of the Council of Ministers.”

67. Since  a  reference  was  earlier  made  to  Article  371-A  of  the

Constitution in the context of the discretionary powers of the Governor, it is

necessary to mention that that Article was inserted in the Constitution by the

Constitution (Thirteenth Amendment) Act, 1962. What is important to notice 278

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in  the  said  Article  is  that  the  draftsman  and  Parliament  maintained  the

distinction between “in his discretion” and “his individual judgment”. This is

clear from the use of the expression “in his discretion” in some paragraphs

of the Sixth Schedule as mentioned above and the use of the expression “his

individual judgment” occurring in Article 371-A(1)(b) of the Constitution.

Therefore,  a  distinction  between  “in  his  discretion”  and  “his  individual

judgment” was recognized and appreciated. Sadly, as the submissions made

before us indicate, this differentiation is slowly losing ground as the framers

of the Government of India Act, 1935 presumably foresaw and which was

adverted to by Sir B.N. Rau.     

68. In  their  concurring  judgment,  Justice  P.  N.  Bhagwati  and  Justice

Krishna Iyer endorsed the view (in paragraph 139 of the Report) that the

discretionary powers of the Governor have been expressly spelt out in the

Constitution  (as  noticed  above)  and  also  endorsed  the  extension  of

‘discretion’ to Article 356 of the Constitution. The learned judges observed

that “limited free-wheeling” is available to the Governor in the choice of the

Chief Minister and the dismissal of the Ministry (and later in paragraph 154

of the Report to the dissolution of the House).  

69. It  appears that  the “limited free-wheeling” concept is  based on the

discretion given to the Governor under Article 163(2) of the Constitution,

although it is not specifically discussed in the concurring judgment.

70. Be that as it may, the learned judges observed that if the Governor was

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held entitled to exercise his powers personally, then that interpretation would

extend to several Articles of the Constitution, including the power to grant

pardon or to remit or commute a sentence (Article 161), the power to make

appointments  including  of  the  Chief  Minister  (Article  164),  the

Advocate-General (Article 165), District Judges (Article 233), Members of

the Public Service Commission (Article 316), the power to prorogue either

House of Legislature or to dissolve the Legislative Assembly (Article 174),

the  right  to  address  or  send  messages  to  the  Houses  of  the  Legislature

(Article 175 and Article 176), the power to assent to Bills or withhold such

assent (Article 200), the power to make recommendations for demands of

grants [Article 203(3)], and the duty to cause to be laid every year the annual

budget (Article 202), the power to promulgate ordinances during recesses of

the Legislature (Article 213), the obligation to make available to the Election

Commission the requisite staff for discharging the functions conferred by

Article 324(1) on the Commission [Article 324(6)], the power to nominate a

member  of  the  Anglo-Indian  Community  to  the  Assembly  in  certain

situations (Article 333) and the power to authorize the use of Hindi in the

proceedings  in  the  High  Court  [Article  348(2)].  (One  could  add  Article

239(2) of the Constitution to this list). It was held that if the ratio of Sardari

Lal and Jayantilal Amritlal Shodhan v. F.N. Rana51 was made applicable :

“…….. to every function which the various articles  of the Constitution confer on the President or the Governor, Parliamentary democracy will become a dope and national elections a numerical exercise in expensive

51 (1964) 5 SCR 29 (5 Judges) 280

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futility. We will be compelled to hold that there are two parallel authorities exercising powers of governance of the country, as in the dyarchy days, except  that  Whitehall  is  substituted  by  Rashtrapati  Bhavan  and  Raj Bhavan. The Cabinet will shrink at Union and State levels in political and administrative authority  and, having solemn regard to the gamut of his powers and responsibilities, the Head of State will be reincarnation of Her Majesty’s  Secretary  of  State  for  India,  untroubled  by  even  the  British Parliament — a little taller in power than the American President. Such a distortion, by interpretation, it appears to us, would virtually amount to a subversion  of  the  structure,  substance  and  vitality  of  our  Republic, particularly  when  we  remember  that  Governors  are  but  appointed functionaries  and the  President  himself  is  elected  on a  limited  indirect basis.  As  we  have  already  indicated,  the  overwhelming  catena  of authorities of this Court have established over the decades that the cabinet form of Government and the Parliamentary system have been adopted in India and the contrary concept must be rejected as incredibly allergic to our political genius, constitutional creed and culture.”

71. All the seven learned judges constituting the Bench were explicit and

unequivocal  in  their  view  that  the  principle  of  Cabinet  responsibility  is

firmly entrenched in our constitutional democracy and that our Constitution

does not accept any “parallel administration” or “dyarchy”.  A fortiorari the

discretion available to the Governor under Article 163 of the Constitution is

not all-pervasive but is circumscribed by the provisions of the Constitution,

with a small ventilator available, in some given exceptional situations by or

under the Constitution.  In this context, it is interesting to note that this Court

did not even advert to the comparatively recent decision rendered in Satya

Pal  Dang which  virtually  sanctified  the  vast  exercise  of  power  by  the

Governor. Therefore,  it  must  be assumed that  Satya Pal Dang should be

confined to its unique and extraordinary facts reminiscent of the happenings

in the age of the Stuarts or did not necessarily lay down the correct  law

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given  the  more  than  blanket  powers  of  the  Governor  that  that  decision

approved or had nothing to do with Article 163 of the Constitution.   

72. Pratapsingh Raojirao Rane v. Governor of  Goa52 was yet  another

peculiar  case  in  which  the  Governor  dismissed  the  Chief  Minister  and

appointed  another  person  (Dr.  Wilfred  Anthony  D’Souza)  as  the  Chief

Minister of Goa in exercise of powers conferred by Article 164(1) of the

Constitution. Both decisions were challenged by way of a writ petition in the

Bombay High Court.  

73. In that case the Governor was of opinion that the Chief Minister had

lost  the  confidence  of  the  Legislative  Assembly.  Accordingly,  he  sent  a

communication to the Chief Minister on 28th July, 1998 at about 2.00 p.m.

requiring him to seek a vote of confidence from the Legislative Assembly

before 3.30 p.m. on the same day. In response, the Chief Minister did seek a

vote  of  confidence from the Legislative Assembly and was successful  in

doing so. (There was some controversy about this).  

74. Notwithstanding  the  confidence  expressed  by  the  Legislative

Assembly in the Chief Minister, the Governor prorogued the Assembly at

about 8.35 p.m. on 29th July, 1998 and appointed Dr. D’Souza as the Chief

Minister at about 10.00 p.m.  

75. The questions before the High Court were whether the Governor had

the power to prorogue the Legislative Assembly and to dismiss the Chief

Minister.  As  regards  the  dismissal  of  the  Chief  Minister,  it  was  held  in 52 AIR 1999 Bombay 53

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dismissing  the  Chief  Minister  of  a  State.  To  this  extent,  Pratapsingh

Raojirao Rane does not lay down the correct law and I agree with Justice

Khehar in this regard.

78. The interpretation of Article 163(2) of the Constitution again came up

for consideration in M.P. Special Police Establishment v. State of M.P.53 In

that case the Lokayukta had given a report that there was sufficient ground

for  prosecuting  two  Ministers  for  offences  under  the  Prevention  of

Corruption  Act,  1988  and/or  under  the  Indian  Penal  Code,  1860.  The

Council  of  Ministers  of  the  State  of  Madhya  Pradesh  declined  to  grant

sanction  to  prosecute,  but  the  Governor  disregarded  the  advice  of  the

Council of Ministers and granted sanction to prosecute. The question that

arose for consideration was whether a Governor could act in his discretion

under Article 163(2) of the Constitution and against the aid and advice of the

Council of Ministers in the matter of grant of sanction for the prosecution of

two Ministers  for  offences under the Prevention of  Corruption Act,  1988

and/or under the Indian Penal Code, 1860.  

79. Adding  to  the  exceptions  already  noted  by  this  Court  where  the

Governor  could  act  despite  the  advice  of  the  Council  of  Ministers,  yet

another exclusionary situation was carved out by the Constitution Bench - in

this case, on the ground of propriety. It was held:

“Undoubtedly, in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and  not  in  his  discretion.  However,  an  exception  may  arise  whilst

53 (2004) 8 SCC 788 (5 Judges) 284

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considering grant of sanction to prosecute a Chief Minister or a Minister where as a matter of propriety the Governor may have to act in his own discretion.”

80. It was observed that in such a case, if the Governor cannot act in his

discretion then there could be a complete breakdown of the rule of law. It

was observed (with respect, in an exaggerated manner) that democracy itself

would be at stake. It was said:

“If, on these facts and circumstances, the Governor cannot act in his own discretion  there  would  be  a  complete  breakdown  of  the  rule  of  law inasmuch as it would then be open for Governments to refuse sanction in spite of overwhelming material showing that a prima facie case is made out. If, in cases where a prima facie case is clearly made out, sanction to prosecute high functionaries is refused or withheld, democracy itself will be at stake. It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.”

81. The decision in the case of Pu Myllai Hlychho v. State of Mizoram54

is  equally  instructive  on  the  subject  of  the  Governor’s  discretion  under

Article  163(2)  of  the  Constitution.  The  issue  related  to  the  Governor’s

discretion  in  the  nomination  of  four  members  of  the  Mara  Autonomous

District Council (MADC) in terms of paragraph 2(1) read with paragraph

20-BB of  the  Sixth  Schedule  to  the  Constitution.55  It  was  held  that  the

54 (2005) 2 SCC 92 (5 Judges) 55 2. Constitution of District Councils and Regional Councils.- (1) There shall be a District Council for  each autonomous district consisting of not more than thirty members, of whom not more than four persons  shall be nominated by the Governor and the rest shall be elected on the basis of adult suffrage:

xxx xxx xxx 20-BB. Exercise of discretionary powers by the Governor in the discharge of his functions.—

The Governor, in the discharge of his functions under sub-paragraphs (2) and (3) of paragraph 1,  sub-paragraphs (1) and (7) of paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4) of  paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph (2) of paragraph 7,  sub-paragraph (3) of paragraph 9, sub-paragraph (1) of paragraph 14, sub-paragraph (1) of paragraph 15  and sub-paragraphs (1) and (2) of paragraph 16 of this Schedule, shall, after consulting the Council of  Ministers, and if he thinks it necessary, the District Council or the Regional Council concerned, take such  action as he considers necessary in his discretion.

Paragraph 20-BB was inserted by The Sixth Schedule to the Constitution (Amendment) Act, 1988. 285

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Governor is entitled to act in his discretion in the matter of nomination of

four  members  to  the  MADC  even  though  he  is  obliged  to  consult  the

Council of Ministers. In this case, the Governor did consult the Council of

Ministers,  but  that  advice  was  not  binding  on  him.  Merely  because  the

Governor consulted the Council of Ministers and acted on the advice given

does  not  fault  the  decision taken by the  Governor  in  the exercise  of  his

discretion.  It was held:

“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. This contention was raised on the basis that the initiation for issuing the notification dated 6-12-2001 was from the Council of Ministers and the Governor acted upon the advice of the Council  of Ministers.  We do not  find any force in  this  contention. Under  the  provisions  of  para  20-BB,  the  Governor  shall  consult  the Council of Ministers. Merely because of the fact that the Governor made consultation with the Council of Ministers for nominating four members, it cannot be assumed that the Governor failed to exercise the discretionary powers. The Governor could have even consulted the District Council or the Regional  Council  in  this  regard.  There is  nothing to  show that  the Governor  did  not  exercise  his  discretionary  powers  independently. Moreover, as noted above,  Article  163(2)  of  the Constitution  expressly prohibits  challenging  the  validity  of  the  exercise  of  such  discretionary power.”

82.  State  of  Gujarat  v.  R.A.  Mehta56 follows  the  view  expressed  in

Samsher Singh and M.P. Special Police Establishment on the discretionary

powers of the Governor and adds a few more illustrative exceptions to those

mentioned  in  the  above  decisions.  Primarily,  the  view  taken  is  that  the

Governor  can  act  in  his  discretion  if  the  advice  from  the  Council  of

Ministers is not available to him due to some extraordinary situation. It was

held:

56 (2013) 3 SCC 1 286

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“Article 163(2) of the Constitution provides that it would be permissible for  the  Governor  to  act  without  ministerial  advice  in  certain  other situations,  depending upon the circumstances  therein,  even though they may  not  specifically  be  mentioned  in  the  Constitution  as  discretionary functions  e.g.  the  exercise  of  power  under  Article  356(1),  as  no  such advice  will  be  available  from  the  Council  of  Ministers,  who  are responsible for the breakdown of constitutional machinery, or where one Ministry  has  resigned,  and  the  other  alternative  Ministry  cannot  be formed. Moreover, clause (2) of Article 163 provides that the Governor himself  is the final authority to decide upon the issue of whether he is required by or under the Constitution, to act in his discretion. The Council of Ministers,  therefore,  would be rendered incompetent  in  the event  of there being a difference of opinion with respect to such a question, and such a decision taken by the Governor would not be  justiciable in any court.  There  may  also  be  circumstances  where  there  are  matters  with respect  to  which  the  Constitution  does  not  specifically  require  the Governor to act in his discretion but the Governor, despite this, may be fully  justified  to  act  so  e.g.  the  Council  of  Ministers  may  advise  the Governor to dissolve a House, which may be detrimental to the interests of the  nation.  In  such  circumstances,  the  Governor  would  be  justified  in refusing to accept the advice rendered to him and act in his discretion. There may even be circumstances where ministerial advice is not available at all i.e. the decision regarding the choice of Chief Minister under Article 164(1) which involves choosing a Chief Minister after a fresh election, or in the event of the death or resignation of the Chief Minister, or dismissal of the Chief Minister who loses majority in the House and yet refuses to resign or agree to dissolution.”

83. However,  it  seems  to  me  that  the  Bench  might  be  incorrect  in

expanding the discretionary power to include the advice of the Council of

Ministers “which may be detrimental to the interests of the nation.” For one,

it is difficult to imagine a democratically elected Council of Ministers giving

advice that “may be detrimental to the interests of the nation”. Secondly,

who is to judge if the advice is “detrimental to the interests of the nation”

and  what  are  the  standards  for  coming  to  this  conclusion.  Thirdly,  our

Constitution  has  not  given the  Governor  arbitrary  or  imperial  powers  to

decide what is or is not detrimental to the interests of the nation. The elected

representatives  are  capable  of  taking  that  call.   Fourthly, should  such  a 287

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remarkable situation arise, the Governor would be obliged to report to the

President, leaving it to him to decide on the next course of action. However,

I leave this ‘expansion’ as it is and am mentioning it only by the way.  

84. As  the  years  have  gone  by,  more  and  more  unusual  if  not

extraordinary situations have arisen. These situations have led, in theory, to

greater  discretionary  powers  being  conferred  on  the  Governor  through

decisions rendered by this Court and the High Courts. In my view, this is

really a step backward and contrary to the idea of responsible government

advocated in the Constituent Assembly.

Justice Sarkaria Commission

85. Be that as it may, August 1988 saw the release of what is commonly

known as the Justice Sarkaria Commission Report on Union-State Relations.

In Chapter IV thereof, it is noted that the role of the Governor had emerged

as one of the key issues in Union-State relations. While dealing with the

historical background, two extremely significant observations were made in

paragraphs 4.2.03 and 4.2.04 of the Report. It was suggested quite clearly

that: (i) The Congress Party which commanded a majority in six Provincial

Legislatures  after  the  Government  of  India  Act,  1935  came  into  force

assumed office only after it was assured by the Viceroy that the Governors

“would not provoke a conflict with the elected Government.” The intention

was pretty clear – that the discretion or the individual judgment available to

the Governor under the Government of India Act, 1935 would be sparingly

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used,  if  at  all.  (ii)  This  intention  was  carried  into  effect  when the  India

(Provisional Constitution) Order, 1947 was promulgated, the expressions ‘in

his  discretion’,  ‘acting  in  his  discretion’  and  ‘exercising  his  individual

judgement’ occurring in the Government of India Act, 1935 were deleted

making it incumbent on the Governor to exercise his functions only on the

aid and advice of his Council of Ministers. This is what the Justice Sarkaria

Commission observed:   

“4.2.03 In 1937, when the Government of India Act, 1935 came into force, the Congress Party commanded a majority in six provincial legislatures. They  foresaw certain  difficulties  in  functioning  under  the  new system which expected Ministers to accept, without demur, the censure implied, if the Governor exercised his individual judgement for the discharge of his special  responsibilities.  The Congress  Party agreed to  assume office  in these Provinces only after it received an assurance from the Viceroy that the Governors would not provoke a conflict with the elected Government.

4.2.04 Independence inevitably brought about a change in the role of the Governor. Until  the Constitution came into force,  the provisions of the Government  of  India  Act,  1935  as  adapted  by  the  India  (Provisional Constitution)  Order,  1947  were  applicable.  This  Order  omitted  the expressions ‘in his discretion’, ‘acting in his discretion’ and ‘exercising his individual  judgement’,  wherever  they  occurred  in  the  Act.  Whereas, earlier, certain functions were to be exercised by the Governor either in his discretion or in his individual judgement,  the Adaptation Order made it incumbent on the Governor to exercise these as well as all other functions only on the advice of his Council of Ministers.”

86. The  Justice  Sarkaria  Commission  looked  at  Article  163(1)  of  the

Constitution in  two parts,  namely, the Governor  exercising his  discretion

when required by the Constitution and when required under the Constitution.

The exercise of discretion conferred  by the Constitution would relate to an

express provision of the Constitution (such as those relating to the Tribal

Areas of  Assam) or  by necessary implication;  while the latter  expression

would include the exercise of discretion from rules and orders made under 289

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the Constitution. Given this interpretation, according to the Justice Sarkaria

Commission,  “The  scope  of  discretionary  powers  has  to  be  strictly

construed, effectively dispelling the apprehension, if any, that the area for

the exercise of discretion covers all or any of the functions to be exercised

by the Governor under the Constitution.  In other words, Article 163 does

not give the Governor a general discretionary power to act against or

without  the advice  of  his  Council  of  Ministers.”57 (Emphasis  given by

me).

87. The Justice Sarkaria Commission studied the Constitution and placed

the functions of the Governor in four categories:

(i)      The Governor acting in his discretion; (ii)     The Governor acting in his individual judgment; (iii)     The Governor  acting in  his  discretion independently of  the

Council of Ministers. (iv)    The Governor acting in his discretion under the Constitution.  

88. The first category of functions consists of the Governor acting in his

discretion only in  respect  of  the Tribal  Areas  of  Assam as per  the Sixth

Schedule  of  the  Constitution.  Subsequently,  as  the  Constitution  was

amended, this category expanded to include Article 371-A (1) (d) and (2)(f)

[relating to Nagaland], Article 371-F (g) [relating to Sikkim], Article 371-H

(a) [relating to Arunachal Pradesh]. To this may also be added paragraph

20-BB of the Sixth Schedule, as discussed in Pu Myllai.

89. The second category of functions consists of the Governor acting in

his individual judgment. This was not provided for in the Constitution as 57 Paragraph 4.3.08

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originally enacted but was introduced by way of an amendment in Article

371-A (1)(b) [pertaining to Nagaland] and Article 371-H (a) [pertaining to

Arunachal Pradesh].  

90. With regard to the third category of  functions,  the Justice  Sarkaria

Commission gave five examples of areas where the Governor exercises his

discretion  independently  of  the  Council  of  Ministers  -  all  of  them  by

necessary implication:

“(a) Governor has necessarily to act in his discretion where the advice of his Council of Ministers is not available, e.g. in the appointment of a Chief Minister  soon after  an election,  or where the Council  of Ministers  has resigned or where it has been dismissed [Article 164(1)]. (b)  A Governor  may  have  to  act  against  the  advice  of  the  Council  of Ministers, e.g. dismissal of a Ministry following its refusal to resign on being defeated in the Legislative Assembly on a vote of no-confidence [Article 164(1) &(2)].

(c) A Governor may require that any matter decided by a Minister may be considered by the Council of Ministers (Article 167).

(d) A Governor may have to make a report to the President under Article 356 that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution.

Obviously, in  such a  situation  he may have to  act  against  the  aid  and advice  of  the  Council  of  Ministers  as  the  situation  may be  due to  the various  acts  of  omission or  commission  on the  part  of  the  Council  of Ministers (Article 356).

(e) A Governor may have to exercise his discretion in reserving a Bill for the consideration of the President (Article 200).”

To the above example may be added the view of this Court expressed in

M.P. Special Police Establishment.  

91. While  explaining  the  examples  given,  the  Justice  Sarkaria

Commission  also  added  that  the  Governor  may  exercise  his  discretion

independently  of  the  Council  of  Ministers  in  dissolving  the  Legislative

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Assembly, but there has been no consistent practice in this regard. It was

stated as follows:

“Various  Governors  have  adopted  different  approaches  in  similar situations in regard to dissolution of the Legislative Assembly. The advice of  a  Chief  Minister,  enjoying  majority  support  in  the  Assembly,  is normally  binding on the Governor. However, where the Chief Minister had lost such support, some Governors refused to dissolve the Legislative Assembly on his advice, while others in similar situations, accepted his advice,  and  dissolved  the  Assembly.  The  Assembly  was  dissolved  in Kerala (1970) and in Punjab (1971) on the advice of the Chief Minister whose claim to majority support was doubtful. However, in more or less similar  circumstances  in  Punjab  (1967),  Uttar  Pradesh  (1968),  Madhya Pradesh  (1969)  and  Orissa  (1971)  the  Legislative  Assembly  was  not dissolved. Attempts were made to instal alternative Ministries.”58

92. In specific regard to summoning the Legislative Assembly (an issue

directly concerning us in the present case), the Justice Sarkaria Commission

noted that differing views were expressed by the States for different reasons.

These have been mentioned in paragraphs 4.11.16 to 4.11.20 of the Report.59

The sum and  substance  of  the  discussion  is  that  the  unilateral  power  to

summon the Legislative Assembly may be exercised by the Governor only

in three situations:

(i)  When the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting,  or  advises  its  summoning  for  a  date  falling beyond this period.

(ii)     When the Chief Minister, unless he is the leader of a party  that  has  an  absolute  majority  in  the  Legislative Assembly, does not seek a vote of confidence within 30 days of taking over.

(iii)  When  it  appears  to  the  Governor  that  the  incumbent Ministry  no  longer  enjoys  the  confidence  of  the

58 Paragraph 4.4.03 59 The view expressed regarding proroguing and dissolving the Assembly is not referred to since that issue  does not arise in the present case.

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Assembly,  he  may  ask  the  Chief  Minister  to  test  his majority  support  on  the  floor  of  the  House  within  a reasonable time. The reasonable time could be within 30 days (unless there is some urgency such as passing the annual budget) but should not exceed 60 days.  

It may be mentioned  en passant  that none of these situations arise in the

present case.

93. With regard to the fourth category of functions, the Justice Sarkaria

Commission gave the examples  of  Orders passed by the President  under

Article 371 of the Constitution.  One such Order issued under Article 371(1)

of  the  Constitution  is  the  Punjab  Regional  Committees  Order,  1957.60

Paragraph 10 of this Order provided that “The Governor shall have special

responsibility for securing the proper functioning of regional committees in

accordance with the provisions of this Order.”

94. Similarly, paragraph 10 of the Andhra Pradesh Regional Committee

Order, 195861 issued under Article 371(1) of the Constitution provided that

“The  Governor  shall  have  special  responsibility  for  securing  the  proper

functioning of the regional committee in accordance with the provisions of

this Order”.

95. With regard to the State of Gujarat, the President issued the State of

Gujarat (Special Responsibility of Governor for Kutch) Order, 1977 dated

28th February, 1977.  This  was in  exercise  of  powers conferred by Article

371(2) of the Constitution. Paragraph 2 if the said Order provided as follows:

60 SRO 3524 dated 4th November, 1957 61 SRO 446-A dated 1st February, 1958

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“2. Special Responsibility of Governor- (1) The Governor of Gujarat shall  have  special  responsibility  for  the  establishment  of  a development board for Kutch and for the other matters referred to in clause (2) of article 371 of the Constitution in respect of that area.

(2) The Governor shall, in the discharge of his special responsibility under this Order, act in his discretion.”

96. For  the  State  of  Manipur,  the  Manipur  Legislative  Assembly  Hill

(Areas  Committee)  Order,  1972  was  issued  on  28th June,  1972  by  the

President  in  exercise  of  powers  conferred  by  Article  371-C  of  the

Constitution.   Paragraph  9  of  this  Order  provided  for  the  special

responsibility  of  the  Governor:  “The  Governor  shall  have  special

responsibility  for  securing  the  proper  functioning  of  the  Hill  Areas

Committee in accordance with the provisions of this Order and shall, in the

discharge of his special responsibility, act in his discretion.”

97. Finally, in exercise of powers conferred by Clause (2) of Article 371 of

the  Constitution,  the  President  issued  the  State  of  Maharashtra  (Special

Responsibility  of  Governor  for  Vidarbha,  Marathwada  and  the  rest  of

Maharashtra)  Order, 1994 which came into effect  on 1st May, 1994.  This

Order confers large discretionary powers on the Governor in relation to the

functioning of the Development Boards, including allocation of funds.  

98. At all times, the Governor may exercise this discretion only to ensure

that  the  system  of  responsible  government  in  the  State  functions  in

accordance with the norms envisaged in the Constitution, and as postulated

by the Constituent Assembly and Dr. Ambedkar.

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99. There  is  absolutely  no  reason  to  take  a  view  different  from  that

expressed by the Justice Sarkaria Commission though coupled with the view

expressed by this Court in the few decisions mentioned above.   

Justice Punchhi Commission

100. In March 2000, Justice Punchhi submitted a Report on Centre-State

Relations.  The  broad  mandate  of  the  Commission  was “to  review  the

existing arrangements between the Union and States as per the Constitution

of India in regard to powers,  functions and responsibilities  in all  spheres

including legislative relations,  administrative relations,  role of  Governors,

emergency  provisions,  financial  relations,  economic  and  social  planning,

Panchayati Raj institutions, sharing of resources, including inter-state river

water and recommend such changes as may be appropriate keeping in view

the practical difficulties”.   

101. With  reference  to  the  discretionary  role  of  the  Governor,  broadly

speaking,  the  following  situations  may  be  culled  out  from  the  Justice

Punchhi Commission Report (paragraph 4.5 thereof):

4. To give assent or withhold or refer a Bill [except a Money Bill] for Presidential assent under Article 200;  

5. The appointment of the Chief Minister under Article 164;  

6. Dismissal  of  a  Government  that  has  lost  the  confidence  of  the Legislative Assembly but refuses to quit since the Chief Minister holds office during the pleasure of the Governor;

7. If the Chief Minister neglects or refuses to summon the Assembly for  holding  a  "Floor  Test",  the  Governor  should  summon  the Assembly for the purpose.

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8. Dissolution and prorogation of the House under Article 174;  

9. Governor's report under Article 356;  

10.Governor's responsibility for certain regions of the country under Articles 371-A, 371-C and 371-H of the Constitution.

(viii)  Where the bias is inherent and/or manifest in the advice of the Council  of  Ministers  [as  in  the  case  of  Madhya  Pradesh Special Police Establishment].  

102. The Justice  Punchhi  Commission did not  disagree with the Justice

Sarkaria Commission on any issue relating to the functions and duties of the

Governor.  It must therefore be taken that the functions, duties and powers of

the Governor by or under the Constitution are “cabined, cribbed, confined”.

However,  if  “discretion”  is  given  a  broad  meaning  as  desired  by  the

respondents and is given greater weightage than “his individual judgment”

then there would be “saucy doubts and fears” 62 of the arbitrary exercise of

discretion by the Governor as has happened in the present case, and other

cases.

103. From the submissions made by learned counsel for the responsents, it

would  seem that  the  functions  of  the  Governor  in  his  relations  with  the

Executive are completely hedged in but in his relations with the Legislature

and the elected representatives, his discretion is virtually unlimited and not

subject to judicial review as well. Surely, this is not what the Constitution

framers  had in  mind nor  do the  decisions  of  this  Court  lead  to  such an

intention or interpretation.  62 Macbeth, Act III Scene IV

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104. Rather than provide so-called untrammeled power and authority to the

Governor, the Constitution makers gave him an escape route in the event the

Legislature is  recalcitrant.  This  is  by way of resort  to Article 356 of  the

Constitution through which the Governor can make a report to the President

in the event there is a failure of constitutional machinery in the State. This

escape  route  is  available  in  a  case  where  the  Governor  dismisses  a

Government but the Government refuses to recognize the dismissal order.  

105. Additionally, to ensure that the Governor is not unaccountable in his

relations with the Legislature, the Constitution provides for the Legislature

to frame its rules of procedure under Article 208 of the Constitution. The

Legislature  in  Arunachal  Pradesh  has  framed  such  rules  and  these  are

considered below.  

Rules of Business of the Legislative Assembly

106. First and foremost, it is important to note that the rules of procedure

framed by the Legislative  Assembly  for  regulating  its  procedure  and the

conduct of its business under Article 208 of the Constitution do not need

anybody’s approval, including that of the Governor of the State.63   

63 208. Rules of procedure - (1) A House of the Legislature of a State may make rules for regulating,  subject to the provisions of this Constitution, its procedure and the conduct of its business.

(2) Until rules are made under clause (1), the rules of procedure and standing orders in force  immediately before the commencement of this Constitution with respect to the Legislature for the  corresponding Province shall have effect in relation to the Legislature of the State subject to such  modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the  Chairman of the Legislative Council, as the case may be.

(3) In a State having a Legislative Council the Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure  with respect to communications between the two Houses.

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107. The  Rules  of  Procedure  and  Conduct  of  Business  in  Arunachal

Pradesh  Legislative  Assembly  (for  short  “the  Rules”)  framed  by  the

Legislative Assembly of Arunachal Pradesh in exercise of powers conferred

by  Article  208  of  the  Constitution  carry  forward  the  intention  of  the

Constituent Assembly as well as the decisions of this Court to the effect that

the Governor is a constitutional or formal head not only of the Executive

but, in some respects, also of the Legislature. The Rules give the Governor

of Arunachal Pradesh limited discretionary powers, but more particularly so

in the matter of summoning the Legislative Assembly.   

108. Rule 3 of the Rules provides that for summoning the Assembly under

Article 174 of the Constitution, the Chief Minister shall, in consultation with

the Speaker, fix the date of commencement and duration of the session of the

Assembly  and  advise  the  Governor  accordingly.   Rule  3A of  the  Rules

provides that on receipt of such advice, the Assembly is summoned by the

Governor and the Secretary of the Assembly then issues summons to each

member of the Assembly specifying the date and place for the session at

least 30 days before the commencement of the session.  The Assembly may

also be summoned on a short notice in terms of the proviso to Rule 3A of the

Rules, but we are not concerned with that.  Rule 3 and Rule 3A of the Rules

read as follows:-

“3. The Chief Minister shall, in consultation with the Speaker, fix the date  of  commencement  and  the  duration  of  the  session,  advise  the Governor  for  summoning  the  Assembly  under  Article  174  of  the Constitution.

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3A. On issue of such summons by the Governor, the Secretary shall issue a summon to each member specifying the date and place for the session of the House at  least  thirty days before the date of commencement of the Session:

Provided that when a Session is called at short notice or emergently, the summons  may  not  be  issued  to  each  member  separately  but  an announcement of the date and place of the Session shall be published in the Gazette and made on the All-India Radio and the members shall also be informed by wireless messages or telegrams.”

109. It  is  clear  from  the  above  that  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.  As  mentioned  by  Pandit  Jawaharlal  Nehru  when  the  First

Amendment  to  the  Constitution  was  discussed  in  Parliament,  either  the

Chief Minister or the Governor (as the case may be) would have to bear the

consequences of violating the Constitution.

110. In  matters  pertaining  to  the  Assembly,  the  Governor  of  Arunachal

Pradesh has been given an additional  ‘discretionary power’.  This  is  with

regard to the election of the Speaker of the Assembly. Rule 7(1) of the Rules

provides that when a new Assembly is constituted or there is a vacancy in

the office of the Speaker and the election of the Speaker is necessary, the

Governor  shall  fix  a  date  for  holding  the  election.  To  this  extent  the

Governor has a role to play in the Assembly in his capacity as a constituent

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of the Legislature, as postulated by Article 168 of the Constitution.  Rule

7(1) of the Rules is relevant for this purpose and it reads as follows:

“7(1) When at the beginning of the new Assembly or owing to a vacancy in the office of the Speaker, the election of a Speaker is necessary, the Governor shall fix a date for the holding of the election, and the Secretary shall send to every member notice of the date so fixed.”

111. The Governor has yet another discretionary duty to perform which is

when the office of the Speaker as well as the Deputy Speaker is vacant, even

when the Assembly is not a new Assembly.  In that event the Governor has

the discretionary duty to appoint a member of the Assembly as a Speaker.

This is provided for in Article 180(1) of the Constitution as well as Rule 8B

of the Rules which reads as follows:

“8B. While the Offices of both the Speaker and the Deputy Speaker are vacant, the duties of the Office of the Speaker shall be performed by such member of the Assembly as the Governor may appoint for the purpose.”

Over the years a convention has developed in most Legislatures in respect

of filling up such vacancies and the ‘discretion’ of the Governor has been

limited thereby.  

112. This may be contrasted with Article 180(2) of the Constitution which

provides that when the Speaker and the Deputy Speaker are both absent (not

because  of  any  vacancy)  then  the  Legislative  Assembly  and  not  the

Governor shall determine, by rules or otherwise, the person who shall act as

the Speaker.  

113. Article 200 of the Constitution postulates that the Governor may (in

exercise  of  his  discretion)  withhold  assent  to  a  Bill  passed  by  the

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Legislature. This too is the subject matter of the Rules and Rule 82 thereof

makes a provision in this regard which reads as follows:

“82. The orders of the President or the Governor granting or withholding the  sanction  or  recommendation  to  an  amendment  to  a  Bill  shall  be communicated to the Secretary by the Minister concerned in writing.”

114. Of course, the Governor cannot withhold assent to a Bill indefinitely

but must return it to the Assembly with a message and this could include his

recommendation for amendments to the Bill.  This is the subject matter of

Rule 102 and Rule 103 of the Rules which read as follows:

“102 (1) When a Bill passed by the Assembly is returned to the Assembly by  the  Governor  with  a  message  requesting  that  the  Assembly  do reconsider  the  Bill  or  any  specified  provisions  thereof  or  any  such amendments as are recommended in his message, the Speaker shall read the  message  of  the  Governor  in  the  Assembly  if  in  session,  or  if  the Assembly  is  not  in  session,  direct  that  it  may  be  circulated  for  the information of the members.

(2) The Bill as passed by the Assembly and returned by the Governor for reconsideration shall thereafter be laid on the Table.

103. At any time after the Bill has been so laid on the Table, any Minister in the case of a Government Bill, or, in any other case, any member may give notice of his intention to move that the amendments recommended by the Governor be taken into consideration.”

115. It  will  be  seen  from  the  above  that  the  discretion  given  to  the

Governor in respect  of his relations with the Legislative Assembly is not

only limited and circumscribed by the Constitution but also by the Rules

framed by the Legislative Assembly under Article 208 of the Constitution.

So  much  so  that  even  the  procedure  for  exchange  of  communications

between the Governor and the Assembly is regulated. The Governor shall

transmit his messages to the Assembly through the Speaker in writing signed

by him or if he is absent from the place of meeting of the Assembly, it shall 301

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be conveyed to the Speaker through the leader of the House or through such

person as the leader may delegate.  This is provided in Rule 203 which reads

as follows:

“203 (1) Communications  from the Governor to the Assembly shall  be made to the Speaker by written message signed by the Governor or if the Governor  is  absent  from  the  place  of  meeting  of  the  Assembly,  his message shall be conveyed to the Speaker through the Leader of the House or through such person as the Leader may delegate.

(2) Communication from the Assembly to the Governor shall be made:- (i) by formal address after motion made and carried in the Assembly; (ii) through the Speaker.”

There can be no doubt that the Governor would need to respect the Rules at

least in his relations with the Legislature and cannot override their terms.  

Arunachal Pradesh Rules of Executive Business

116. In  exercise  of  powers  conferred  by  Clause  (2)  and  Clause  (3)  of

Article  166  of  the  Constitution,  the  Governor  of  Arunachal  Pradesh  has

framed the Arunachal Pradesh Rules of Executive Business, 1987.

117. In terms of Rule 8, all cases referred to in the Schedule are mandated

to be brought before the Cabinet in accordance with the provisions contained

in Part II thereof.  Rule 8 reads as follows:

“8. Subject to the orders of the Chief Minister under Rule 14, all cases referred  to  in  the  Schedule  to  these  rules  shall  be  brought  before  the Cabinet  in  accordance  with  the  provisions  of  the  rules  contained  in Part-II.”

118. As will be noticed from the above, Rule 8 is subject to the orders of

the Chief Minister under Rule 14 which is in Part II.  In this regard, as per

Rule 14, the Chief Minister is entitled to refer any case mentioned in the

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Schedule for consideration  at  a meeting of the Cabinet.  Rule 14 reads as

follows:

“14. All cases referred to as in the schedule shall, after consideration by the Minister be sent to the Secretary with a view to obtaining orders of the Chief Minister for circulation of the case under Rule 16 or for bringing it for consideration at a meeting of the Cabinet.”

119. Rule 33 gives a list of classes of cases required to be placed before the

Governor before the issuance of orders, with the approval of the concerned

Minister and the Chief Minister. This includes, in Rule 33(i) the Governor’s

address  and message  to  the  Legislative  Assembly  and in  Rule  33(p)  the

summoning,  prorogation  or  dissolution  of  the  State  Assembly.   In  other

words,  before  summoning  the  Legislative  Assembly,  the  case  has  to  be

considered by the Chief Minister and then placed before the Governor of

Arunachal  Pradesh  for  issuance  of  appropriate  orders.  This  is  fully  in

consonance  with  the  Rules  of  Procedure  and  Conduct  of  Business  in

Arunachal Pradesh Legislative Assembly framed under Article 208 of the

Constitution.

120. The Schedule to the Arunachal Pradesh Rules of Executive Business

provides in item no. 4 (with reference to Rule 8 and Rule 14) for proposals

to summon, prorogue or dissolve the Legislature of the State.   

Conclusions on the Rules of Business

121. It  is  clear  from the  above,  that  though summoning the Legislative

Assembly might be an executive function of the Governor, that function can

be exercised by him only after such a proposal is seen by the Chief Minister

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and sent to him. Reading this with the Rules of Procedure and Conduct of

Business in Arunachal Pradesh Legislative Assembly, the Chief Minister can

make a proposal to the Governor for summoning the Legislative Assembly

only in consultation with the Speaker of the Legislative Assembly who is, in

a sense,  the Master  of  the House.   In other  words,  the Governor has no

independent discretion or authority to summon the Legislative Assembly, in

terms  of  the  Rules  of  Procedure  and  Conduct  of  Business  in  Arunachal

Pradesh Legislative Assembly framed under Article 208 of the Constitution

or the Arunachal Pradesh Rules of Executive Business, 1987 framed under

Article 166 of the Constitution to summon the Legislative Assembly in his

discretion.   

122. As already mentioned above, 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.  

Article 371-H of the Constitution

123. Apart from the views of the Constituent Assembly, the provisions of

the Constitution, decisions of this Court and the views of eminent jurists on

the functions,  duties  and powers of  the Governor, the Constitution has  a

special provision with respect to Arunachal Pradesh. Article 371-H of the

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Constitution provides for the Governor exercising “his individual judgment”

in  the  discharge  of  his  functions  relating  to  law and order  in  Arunachal

Pradesh. Specifically, therefore, the exercise of individual judgment by the

Governor  of  Arunachal  Pradesh  is  permitted  by  the  Constitution,  but  is

limited to issues of law and order only. Article 371-H of the Constitution

reads as follows:

“371-H.  Special  provision  with  respect  to  the  State  of  Arunachal Pradesh.—Notwithstanding anything in this Constitution,— (a) the Governor of Arunachal Pradesh shall  have special responsibility with respect to law and order in the State of Arunachal Pradesh and in the discharge  of  his  functions  in  relation  thereto,  the  Governor  shall,  after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:

Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this clause required to act in the exercise of his individual judgment, the decision of the Governor in his  discretion  shall  be  final,  and the  validity  of  anything  done by  the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:

Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it  is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Arunachal Pradesh, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order; (b)  the  Legislative  Assembly  of  the  State  of  Arunachal  Pradesh  shall consist of not less than thirty members.”

124. It is quite clear from the above discussion and particularly from the

provisions of the Constitution that the concept of “in his discretion” and “his

individual judgment” is very much alive and the distinction continues to be

real.  Once this  is  appreciated the extent  and scope of  Article  163 of  the

Constitution becomes obvious.

Conclusions

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125. 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.  

126. The  development  of  constitutional  law  in  India  and  some  rather

peculiar and extraordinary situations have led to the evolution of a distinct

category of  functions,  in addition to those postulated or  imagined by the

Constitution  and  identified  above.  These  are  functions  in  which  the

Governor acts by the Constitution and of constitutional necessity in view of

the peculiar and extraordinary situation such as that which arose in  M.P.

Special Police Establishment and as arise in situations relating to Article

356 of  the  Constitution  or  in  choosing  a  person  to  be  the  leader  of  the

Legislative Assembly and the Chief  Minister  of  the State by proving his

majority in the Legislative Assembly.  

127. However, these limitations do not preclude the Legislative Assembly

from framing its  Rules  of  Legislative  Business  under  Article  208 of  the

Constitution with reference to the functions of the Governor, nor do they

preclude  the  Governor  from framing  Rules  of  Executive  Business  under

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Article  166  of  the  Constitution  for  the  smooth  functioning  of  the

government,  as  long  as  the  Rules  are  framed  in  consonance  with  the

constitutional requirements and within constitutional boundaries.

Understanding the facts …..

128. The  facts  presented  to  us  show  that  on  3rd November,  2015  the

Governor issued an Order whereby, in exercise of powers conferred on him

by Clause (1) of Article 174 of the Constitution, the Sixth Session of the

Legislative Assembly was summoned to meet at 10.00 a.m. on 14th January,

2016  to  18th January,  2016  in  the  Legislative  Assembly  Chamber  at

Naharlagun. The Order was in accordance with the constitutional provision

(Article 174) for summoning the Assembly and in accordance with the Rules

of  Procedure  and  Conduct  of  Business  in  Arunachal  Pradesh  Legislative

Assembly  framed  in  exercise  of  powers  granted  by  Article  208  of  the

Constitution. In other words, the Order was in consultation with the Speaker

of the Assembly and the Chief Minister of Arunachal Pradesh.  

129. Thereafter,  on  19th November,  2015  notice  of  a  resolution  for  the

removal of the Speaker was received in the Secretariat of the Legislative

Assembly. This resolution was in terms of Article 179 of the Constitution. A

copy  of  this  resolution  was  also  independently  made  available  to  the

Governor by the signatories to the resolution along with a request to advance

the  date  of  the  session  of  the  Assembly  to  consider  and  vote  on  the

resolution for the removal of the Speaker.  

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130. By an Order issued on 9th December, 2015 the Order of 3rd November,

2015  summoning  the  Assembly  was  modified  by  the  Governor  on  the

ground,  inter  alia,  of  his  constitutional  obligation  “to  ensure  that  the

resolution  for  removal  of  Speaker  is  expeditiously  placed  before  the

Legislative Assembly.”  The modification Order  modified the date  of  14th

January, 2016 to read 16th December, 2015 and the date of 18th January, 2016

to 18th December, 2015.  

131. The modification Order also recorded that expeditious consideration

was necessary in view of (i) past precedents in the Lok Sabha (none of the

learned counsel could enlighten us on any such precedent); (ii) paragraph 2

of Rule 151 of the Rules of Procedure and Conduct of Business in Arunachal

Pradesh Legislative Assembly required expedition;64 (iii) utmost immediacy

for clearing the cloud cast on the continuance of the incumbent Speaker; (iv)

the  personal  satisfaction  of  the  Governor  that  the  time  gap  till  the  next

session of the Assembly was long and unreasonable and “may cause damage

64 151. Any resolution to remove the Speaker or the Deputy Speaker from office, of which at least fourteen  days notice as required under Article 179 of the Constitution has been given shall be read to the Assembly  by the person presiding who shall then request the members who are in favour of leave being granted to  move the Resolution to rise in their places, and if not less than one fifth of the total numbers of member of  the House rise accordingly, the person presiding shall allow the Resolution to be moved.  If less than  one-fifth of the total numbers of member of the House rise, the person presiding shall inform the member  who may have given the notice, that he has not the leave of the Assembly to move it.

If notice of a Resolution against the Speaker or the Deputy Speaker is tabled, the House shall not  be adjourned till the provisions of these Rules are complied with and the motion on no confidence is  disposed of finally.

The charges in the Resolution moved by a mover against Speaker or Deputy Speaker should be  substantially and precisely expressed.

The nature of the charges should be within the conduct of Speaker or Deputy Speaker in the House for the inability to conduct the business in the House or misappropriation of Assembly property or finance.

The Resolution duly signed by the mover should be handed over to Secretary, Legislative  Assembly for scrutiny.

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to the goals and ideals of provisions in the Constitution of India and the

Rules  of  Procedure  of  the  House  concerning  speedy  disposal  of  such

resolutions”  and;  (v)  in  advancing  the  date  of  the  sixth  session  of  the

Assembly, he “may not be bound by the advice of the Council of Ministers,

since the subject matter of the notice for removal of the Speaker is not a

matter  falling  under  the  executive  jurisdiction  of  the  Chief  Minister,

Arunachal Pradesh nor such a subject matter finds a mention in the Rules of

Executive Business of the Government of Arunachal Pradesh framed under

Article  166  of  the  Constitution  of  India…”  The  relevant  extract  of  the

modification Order reads as follows:

“WHEREAS any such notice of resolution in relation to an Officer of the Legislative  Assembly  (Speaker  or  Deputy  Speaker)  needs  to  be expeditiously considered by the Legislative Assembly in view of (i) past precedents in the Lok Sabha and (ii) the seriousness and urgency accorded to such resolutions in paragraph 2 of Rule 151 of the Rules of Procedure and Conduct of Business in the Arunachal Pradesh Legislative Assembly and (iii) the utmost immediacy with which the cloud cast by the notice of resolution  over  the  continuance  of  the  incumbent  in  the  office  of  the Speaker has to be cleared:

WHEREAS I am personally satisfied that the time gap between the date of compliance  of  the  notice  with  the  notice  period  prescribed in  the  first proviso to article 179 (c) of the Constitution of India and the date of the intended first sitting of the ensuing session, as computed in the aforesaid manner, is long and unreasonable and may cause damage to the goals and ideals of provisions in the Constitution of India and the Rules of Procedure of the House concerning speedy disposal of such resolutions:

WHEREAS I am further satisfied that, for any exercise of advancing the date of the sixth session under clause (1) of article 174 of the Constitution of India to a date earlier than the date mentioned in the summons dated 3rd November,  2015  for  facilitating  the  House  to  expeditiously  consider resolutions for removal of Speaker,  I may not be bound by the advice of the Council of Ministers, since the subject matter of the notice for removal of the Speaker is not a matter falling under the executive jurisdiction of the Chief Minister, Arunachal Pradesh nor such a subject matter finds a mention  in  the  Rules  of  Executive  Business  of  the  Government  of Arunachal Pradesh framed under article 166 of the Constitution of India

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thereby restricting the role of the Chief Minister in advising me in exercise of my powers under article  174(1) of the Constitution of India only to matters for which the Chief Minister, under the Constitution of India, is responsible:”

132. Effectively, 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.  

133. On 14th December, 2015 that is two days before the Assembly was to

meet,  the Council of Ministers of Arunachal Pradesh met and considered

Agenda Item No. 1 being “Discussion on the message dated 9 th December,

2015  of  the  Governor  of  Arunachal  Pradesh  for  pre-ponement  of  the

Assembly session from 14th January, 2016 to 16th December, 2015”.  The

Minutes of the Cabinet record as follows:

“The Cabinet has discussed the opinion rendered by the Learned Advocate General  dated  12.12.2015  on  the  constitutionality  of  the  order  and message of HE, the Governor. After careful examination, the Cabinet has resolved as under:

The State Cabinet at its meeting held on 14th December, 2015 at 1000 hrs in  CMs  conference  hall  again  discussed  in  detail  the  Order  and  the Message dated 09.12.2015 of His Excellency the Governor of Arunachal Pradesh.

Cabinet  has  received  the  opinion  of  the  Ld.  Advocate  General  dated 12.12.2015 and other legal experts on the said Order and Message. The Cabinet has perused the said opinion and is in complete agreement with views of the Ld. Advocate General.

The said Order dated 09.12.2015 issued by His Excellency the Governor of Arunachal Pradesh is in contradiction to Article 174 read with Article 163  of  the  Constitution  of  India  and  Rule  3  and  3A of  the  Rules  of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assembly.   Similarly,  the  Message  is  contrary  to  Article  175  of  the Constitution read with Rule 245 of the Rules. Moreover, the Hon’ble High

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Court  of Gauhati  has fixed the hearing of the case of resignation of 2 MLAs from the Assembly on 16th December, 2015.

Therefore, the Cabinet resolves and advises, His Excellency, the Governor of Arunachal Pradesh to recall and cancel the Order and Message dated 9 th December, 2015 and allow the Session to be convened on 14th January, 2016 as already ordered and scheduled.  

The Cabinet also resolves to endorse a copy of this resolution and legal advice of the Ld. Advocate General to the Hon’ble Speaker.”

134. As per the list of dates and events supplied to us, the Speaker urged

the Governor by a communication of 14th December, 2015 “to uphold and

preserve  the  sanctity  of  the  constitutional  framework  and  let  the  House

function as per its original schedule without any undue interference.” This

communication was not acknowledged nor replied to. It has also not been

placed before us.  

….. and the applicable law

135. It does appear to me, on facts, that the Governor acted unilaterally in

issuing the modification Order and did not consult either the Chief Minister

or the Speaker. In any event, no such consultation was shown to us. Under

these  circumstances,  the  legitimate  question  that  arises  is  whether  the

Governor could modify the notified dates of the session of the Assembly and

simultaneously cancel and revoke the dates earlier fixed by an appropriate

Order in exercise of his powers under Article 174 of the Constitution and (as

suggested by learned counsel appearing on his behalf and the movers of the

resolution)  in  the  exercise  of  his  discretion  under  Article  163  of  the

Constitution?  What  further  complicates  the  matter  is  that  the  Governor

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ignored the resolution of the Cabinet of 14th December, 2015 even assuming

the communication of the Speaker did not reach him.  

136. Our  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.

137. As is evident from our constitutional history, there are three areas in

which a Governor might function:

(15) Areas in which he can act only on the aid and advice of the  Council  of  Ministers.  This  is  in  all  areas  of  the executive  functions  of  the  State  Government  [Article 166].

(16) Areas in which he can act in his discretion by or under the Constitution and in which he does not need to take the  advice  of  the  Council  of  Ministers  [Article  163  - “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.”] or, areas in which he might take the advice of  the  Council  of  Ministers  but  is  not  bound  by  it enabling  him  to  act  in  his  individual  judgment  by  or under the Constitution.

(17) Areas  that  have  no concern  with  the  Constitution.  For example,  where  he  is  acting  eo  nomine.  We are  not concerned with this area at all.

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For our purposes, a distinction needs to be drawn between the relationship of

the Governor vis-à-vis the Executive and the relationship of the Governor

vis-à-vis the Legislature. Article 163 deals with the relationship of the first

category and Article 174 (among others) deals with the relationship of the

second category. We are concerned with the second category, although the

submissions of learned counsel have roped in Article 163 of the Constitution

by contending that summoning the Legislative Assembly is an executive act

or function.  

138.   It is not at all necessary to enter into a debate on whether the act or

function  of  summoning  the  Assembly  is  an  executive  act  or  function.

Assuming it to be an executive function, summoning the Assembly cannot

be read as  a  ‘power’ conferred by the Constitution  on the Governor  -  it

remains  a  function  that  the  Governor  performs  in  accordance  with  the

mandate of the Rules of Procedure and Conduct of Business in Arunachal

Pradesh Legislative Assembly on the advice of the Chief Minister and in

consultation with the Speaker of the Assembly. The unarticulated premise is

that the Governor cannot ‘act’ in an unregulated manner de hors any rules of

procedure in matters concerning the Legislative Assembly. The Governor is

expected to function in accordance with the provisions of the Constitution

(and the history behind the enactment of  its  provisions),  the law and the

rules regulating his  functions.  It  is  easy to  forget  that  the Governor  is  a

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play the game in accordance with the rules of the game – whether it is in

relation to the Executive (aid and advise of the Council of Ministers) or the

Legislature (Rules of Procedure and Conduct of Business of the Arunachal

Pradesh Legislative Assembly).  This is not to say that the Governor has no

powers – he does, but these too are delineated by the Constitution either

specifically or by necessary implication.  Failure to adhere to these basic

principles is an invitation to enter the highway to the danger zone.  

139.    Assuming however, that the Governor has the ‘constitutional power’

to summon the Assembly (and that it is not merely an executive function)

the considerations at law become quite different.  Undoubtedly, no power,

constitutional or otherwise, can be exercised in an arbitrary manner though

the exercise  of  power, in some situations  is  undoubtedly beyond judicial

consideration  or  judicial  review and  at  best  an  academic  discussion,  for

example the legality of using the armed forces of the Union internationally.

If  the  functions  of  the  Governor  were  to  be  read  as  his  power,  and  an

untrammeled  one  at  that  (in  view of  Article  163  of  the  Constitution,  as

contended),  then  the  Governor  has  the  power  to  literally  summon  the

Assembly to meet “at such time and place as he thinks fit” that is in any city

and at any place other than the Legislative Assembly building and at any odd

time. This is nothing but arbitrary and surely, an arbitrary exercise of power

is not what our Constitution makers either contemplated in the hands of the

Governor or imagined its wielding by any constitutional authority.

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140.   In  the  Case  concerning  Electtronica  Sicula  S.P.A.  (ELSI)65 the

International Court of Justice described arbitrariness in the following words:

“128. Arbitrariness is not so much something opposed to a rule of law, as something opposed to  the  rule  of law. This  idea  was expressed by the Court  in  the  Asylum  case,  when  it  spoke  of  "arbitrary  action"  being "substituted for the rule of law" (Asylum, Judgment, I.C.J. Reports 1950, p. 284). It is a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of juridical propriety.”

141. Does the rule of  law in our country permit  the Governor to throw

constitutional  principles  and  the  Rules  of  Procedure  and  Conduct  of

Business of the Arunachal Pradesh Legislative Assembly to the winds and

summon  the  Assembly  to  meet  wherever  and  whenever  he  deems

appropriate? Surely the answer to this must be in the negative and since that

is so, it must follow that the ‘power’ apparently conferred on the Governor is

arbitrary  and  must  be  read  down to  at  least  a  ‘reasonable  power’  to  be

exercised in accord and consonance with constitutional principles, law and

the rules.

142. On merits, it is not possible or even advisable to look into the pros and

cons of the decision taken by the Governor. All that need be said is that the

events  as  they  occurred  with  great  rapidity  over  the  days  and  weeks

preceding  the  modified  Order  appear  to  be  nothing  more  or  less  than  a

political circus.  However, what is  disquieting in constitutional terms (and

that has nothing to do with the reasons given by the Governor or the merits

or otherwise of the decision unilaterally taken by him) is the short shrift that

the  Governor  gave  to  a  possible  resolution  of  the  Cabinet  of  Arunachal 65 United States of America v. Italy, I.C.J. Reports 1989, p.15

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Pradesh. While issuing the modified Order, the Governor concluded that that

he “may not be bound by the advice the Council of Ministers” for whatever

reason. From where did the Governor derive this principle and how did he

dream that he could invoke the concept of “individual judgment” should a

resolution  of  the  Council  of  Ministers  be  placed  before  him –  the  very

concept that our constitution framers were not in favour of?   

143. To  make  matters  worse  and,  in  a  sense,  humiliate  the  elected

government of the day, the Governor did ignore the resolution of the Council

of Ministers taken on 14th December, 2015 when it was placed before him.

By this time there was a complete break-down of communications between

the Governor and the elected Government and that, among other things, led

to  an  unsavory  confrontation  between  the  Governor  and  some  Cabinet

Ministers. That interpersonal relationships of constitutional functionaries are

carried  out  with  such  a  complete  lack  of  cordiality  and  gay  abandon  is

indeed unfortunate. The result is a thrashing given to the Constitution and a

spanking to  governance.  It  is  precisely to  avoid this  that  the Constituent

Assembly  invoked  the  “principle  of  responsible  government”.  Sir  Alladi

Krishnaswamy Aiyar, while supporting Dr. Ambedkar’s motion for adopting

the  Constitution  spoke  of  responsible  government  and  the  “breakdown

provisions”  of  the  Constitution  (not  necessarily  Article  356)  on  23rd

November, 1949 (virtually echoing Churchill) as follows:

“After weighing the pros and cons of the Presidential System as obtaining in America and the Cabinet system of Government obtaining in England

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