The Governor, the Assembly, and the Court: The Supreme Court’s Arunachal Decision (Guest Post)

(In this guest post, Jahnavi Sindhu decodes the recent Constitution Bench judgment on Arunachal Pradesh.)

Last Tuesday, in a landmark verdict [“Nabam Rebia”], the Supreme Court reinstated Mr. Nabam Tuki as the Chief Minister of Arunachal Pradesh by invalidating the actions of the State Governor that had precipitated a no-confidence vote against Tuki. The core constitutional question before the Court was about the scope of the Governor’s discretionary powers in a system of responsible government. Its judgment is a significant addition to the jurisprudence dealing with the constitutional relationship between the Government, the state legislatures, and the courts.

Facts and Verdict

Briefly, the facts: on 03.11.15, the Governor, on the advice of the Council of Ministers, issued an order summoning the 6th session of the Legislative Assembly of Arunachal Pradesh on 14.01.16. In the interim, however, factional politics raised its ugly head. A notice of resolution for removal of the Speaker of the house was moved on 19.11.15, with a copy to the Governor (coming on the heels of several Congress party meetings regarding dissident factions in the party). These meetings culminated in a petition for disqualification (on 07.12.15), under the Tenth Schedule of the Constitution, of 14 defecting MLAs of the Congress (including the Deputy Speaker).

Subsequent to this, the Governor took two actions that formed the basis of the challenge before the Court. These were:

  1. An Order dated 09.12.15 issued under Article 174(1) of the Constitution, “pre-poning” the Assembly session from 14.01.16 to 16.12.15, and citing the Governor’s constitutional obligation to ensure that the resolution of removal of speaker be considered expeditiously.
  1. A message dated 09.12.15 issued to the Legislative Assembly under Article 175(2) directing that the resolution for removal of speaker be taken up as the first item on the agenda with the Deputy Speaker presiding over the session. Interestingly, the Governor also ordered that “until the session is prorogued, no Presiding Officer shall alter the party composition in the House.”

In response, the State Cabinet issued a resolution on 14.12.15, echoing the opinion of the Advocate-General that the unilateral actions of the Governor were unconstitutional. On the expiry of the notice period under Schedule X, the Speaker went ahead with disqualification proceedings and passed an ex-parte disqualification order on 15.12.15 against the MLAs including the Deputy Speaker, thus altering the party composition in the House. On the same day, the Deputy Speaker set aside this order of disqualification citing, inter alia, the impropriety of the Speaker’s action in taking up disqualification proceedings while the resolution for his removal was slated for the next day. The other faction of the assembly went ahead with the pre-poned session ordered by the Governor on 16.12.15. These proceedings resulted in the removal of the speaker, a no-confidence motion against Nabam Tuki’s Government and a confidence vote in favour of a government led by Kahiko Pul. Though the Petitioners, (the Speaker and some members of the Congress) challenged all the aforementioned orders and proceedings (except the order of the Speaker), they focussed their submission on knocking off the first domino i.e. the unilateral intervention of the Governor in matters of the House.

The Court was unanimous in its ruling in favour of the Petitioner to quash the summons order and message as unconstitutional. The majority opinion of Justice Kehar, Justice Ghose and Justice Ramana (“the majority”) restored status quo ante as on 15.12.15. Justice Lokur, while generally agreeing with the majority, recorded separate reasons for his conclusions. Justice Misra recorded separate reasons on the interaction between Article 179(c) and the Tenth Schedule of the Constitution. However, this post will only focus on the first issue of the constitutional validity of the actions of the Governor, specifically, the reasoning of the majority.

Contentions

In assailing the actions of the Governor, the Petitioners relied on the general scheme of responsible government envisaged in the Constitution that dictates governance be carried out by those who are responsible to the people, i.e. the Council of Ministers collectively responsible to the Legislature. The Governor is a nominated official who performs functions only on the aid and advice of the council of ministers. The Constitution has carefully delineated certain functions and powers which she can exercise in her discretion, but this power cannot be conflated with a general discretionary power to summon the Assembly under Article 174, and to direct the manner of proceedings in the house through messages under Article 175.

The respondents, on the other hand, relied on the broad ambit of Articles 163(1) and (2), which state that:

(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

       (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.

The Respondents argued that the Governor, unlike the President, is vested with discretionary powers under the constitution to avert perils to democracy of the kind that had arisen in this case. They also took strength from past instances where the Governor’s power to independently summon and dissolve the Assembly under Article 174 was considered valid. The mainstay of the Respondents’ argument was Article 163(2), which specifically vests the final determination of whether a matter falls within the discretion of the Governor with the Governor herself, and therefore bars judicial review of this aspect. The Court, therefore, was not entitled to look into the legality of the two impugned orders at all.

The Constitutional Background

Now, there can be no quarrel with the proposition that judicial review, a component of the basic structure of the Constitution, serves as a form of a check and balance on other organs of the Government and cannot be proscribed by any statute or amendment to the Constitution. However, Article 163 is distinctive for it is an original provision of the Constitution that appears to bar judicial review. The Court too, having recorded this contention of the Respondents, was conscious of the fact that the doctrine of basic structure would not apply to an original provision of the constitution to invalidate this bar on judicial review. Thus, the Court had two options: either to hold that the nature of powers exercised by the Governor in this case did not fall within Article 163(1), or to hold that Article 163(2) cannot be interpreted to mean a complete bar on judicial review. Unfortunately, it is not clear as to which of these lines the Majority tried to toe in their decision.

To answer this question satisfactorily, we need to begin at the beginning. The nature of the office of the Governor was fervently debated in the Constituent Assembly, and the relevant provisions underwent significant changes between 1947 and 1949. Initially, the Governor was intended to be an elected office. On May 31, 1949, the Assembly adopted an amendment changing the mode of selection of the Governor to a mere nomination by the President. Dr. Ambedkar justified this move explaining that, “according to the principles of the new Constitution he [the Governor] is required to follow the advice of his Ministry in all matters.”

The very next day, Article 163 (Article 143 as it then was) came up for discussion. It encountered great opposition on the ground that it gave the governor vast discretionary powers. Dr. Ambedkar once again cautioned, “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.” Thus, it is evident that Article 163 was not intended to be a general source of discretionary power of the Governor but had to be read with those Articles in the Constitution that grant express discretion to the Governor in respect of a function or power – an enabling provision, akin to Article 355.

Now, at that time, Article 174 (i.e., the provision that grants the power to the Governor to summon the House, and was invoked by the Governor in this case) was one such provision that specifically used the phrase the phrase “Governor, in his discretion.” However, the provision was amended on June 2nd 1949 to delete “in his discretion”, on the ground that the provision to this extent was “inconsistent with the scheme of a constitutional governor.” Similarly, the phrase “in his discretion” was deleted from Article 164 and Article 200 of the Constitution, and later, on August 3rd 1949, from Article 188, which gave discretion to the Governor to temporarily take up the administration of the State in the event of a constitutional breakdown in the State. Thus it is clear, that eventually, the Constituent Assembly was of the opinion that the Governor was not supposed to have any discretionary powers as under Article 163(1) in respect of these provisions, specifically Article 174.

Over time, however, the judiciary read in “discretionary powers” into these provisions to specify certain situations where the Governor would be obliged to disregard the advice of the Council of Ministers or act on his own if the advice is not available. This judicial determination took root in Samsher Singh where the majority ruled that the Governor must only act on advice of the council of ministers. However, in paras 54 and 55, the Court adverted to Articles 200 and Article 356 to hold that under these provisions the Governor would be entitled to disregard the advice of the council of ministers. The concurring opinion of Justice Krishna Iyer and Justice Bhagwati put forth a longer list that included dismissal of a government that lost its majority, and the dissolution of the house if a government has lost its majority under Article 174. Over time, this list of “exceptional powers” has been expanded by cases and advisory reports such as the Sarkaria Commission and Justice Punchii Commission to include situations where the advice of the Council of ministers is not available, or situations dictated by propriety and constitutional necessity. Specifically Article 174 has been included in this list to the extent that the Governor can summon the assembly for a floor test when the Chief Minister who seems to have lost majority refuses to do so, or dissolve the assembly when a Government loses majority.

Therefore, the key question that needs to be posed at this stage, which has not been definitively considered or answered by the Supreme Court in any case till date, is whether these implied powers (read into the Articles by the Supreme Court) of the Governor would be covered under Article 163(1) so as to be hit by the bar upon judicial review under Article 163(2)?

The Majority Opinion and its Discontents

Interestingly – and almost paradoxically – the Majority does seem to think so. In para 143, where the majority summarises its conclusions in six points, the first point states the “measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).” Thereafter, apart from express provisions of the constitution that grant the Governor such discretion, in points three and four, the majority holds that 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” and “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.” A reading of Article 163 would establish that once a Governor exercises discretion covered under Article 163(1), the bar to judicial review under Article 163(2) would be attracted. Therefore, the Majority holds that “the 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.”

Thus, irrespective of the contentions of the parties, once the Court concedes that a particular power is within the discretion of the Governor under Article 163(1) the bar of judicial review under Article 163(2) is attracted. By the Majority’s own admission in para 151, Article 174 is a provision that encompasses situations where the Governor would have to exercise discretion as discussed above, thus perhaps attracting the bar of judicial review under Article 163(2) if the Governor chooses to act in his discretion under the provision.

Perhaps, this can be countered by arguing that the majority meant that the Governor has implied discretion in respect of certain situations as opposed to provisions. For instance, the Governor will have the discretion to summon the House for a floor test and not a general discretion to summon (which is what happened in the present case), such that only the former falls within “discretion” under Article 163(1). This strained interpretation of Article 163 is difficult to accept. The rationale of Article 163 was to specify those provisions or powers which the Governor was to exercise in her discretion and to leave to her to decide the occasion and manner of the exercise of discretion. Thus, the Court having characterised the power to summon as a discretionary power under Article 163(1), could not provide a satisfactory reason for overcoming the bar of judicial review under Article 163(2). There is an attempt to further do so in point five of the majority’s conclusions where they hold, “any discretion exercised beyond the Governor’s jurisdictional authority, would certainly be subject to judicial review.” Unfortunately, this solitary line on why Article 163(2) does not serve as a bar on judicial review only provides cold comfort.

‘Discretion’ and the Concurring Opinion

It is clear that the problem is rooted in the characterisation of these implied powers as ‘discretion’, which attracts the terms Article 163(1). And this, in my view, is where the flaw lies in the opinion of the Majority, which draws it into its dilemma. Contra the Majority’s belief, discretion under Article 163 was intended to have a very specific connotation. As admitted in the Constituent Assembly, the provision was copied from Section 50 of the Government of India Act, 1935. The provisions are almost in pari materia, with the exception that Section 50 of the Government of India Act refers to both ‘discretion’ and ‘individual judgment’ of the Governor. From the debates on Section 50 it can be garnered that both terms were intended to have distinct meaings- ‘discretion’ connoted areas of governance where the governor was supposed to act without the advice of council of ministers, areas which were reserved for the Governor. On the other hand, the exercise of ‘individual judgment’ of the Governor would arise in situations wherein the Governor was normally supposed to act on the aid and advice of the Council of Ministers but circumstances existed compelling the Governor to disregard or dissent from the advice of the Council of Ministers. This distinction has been recognised by Justice Lokur in his separate opinion. In para 125, he holds that there are three exceptions to the rule that the Governor is bound by the advice of the Council of Ministers: first, discretion conferred by the Constitution (i.e. as per express provisions in the Constitution); second, discretion conferred under the Constitution (i.e. from rules made under the Constitution such as the Rules of Procedure under Article 208) and third, individual judgment in instances specified in the constitution. Justice Lokur explains that B.N. Rau was conscious of the distinction between discretion and individual judgment of the Governor while inserting Article 163 in the first draft. Further, that this distinction continues to be maintained under the Constitution under Article 371-A and Article 371-H and has found mention in the Sarkaria Commission Report. On this basis, in para 20, Justice Lokur holds that Article 163(2) cannot be all pervasive and will only apply in respect of discretion exercised in terms of Article 163(1) (that is, discretion specified by the Constitution).

Under Article 174, the power to summon is ordinarily supposed to be exercised as per the aid and advice of the council of ministers the Governor can disregard this advice only in limited circumstances. Therefore, it is submitted that the power of the Governor in this respect falls within his individual judgment and not his discretion. Therefore, it also falls outside the scope of Article 163(1), and is not hit by the bar under Article 163(2). Indeed, to hold that the implied power to summon the assembly in certain situations would amount to exercise of ‘discretion’ by the Governor would also go against the express intention of the Constituent Assembly which specifically removed the phrase ‘in his discretion’ from Article 174.

Their reasoning notwithstanding, the majority and concurring opinion appear to converge on the conclusion that these implied powers or functions when exercised by the Governor would be subject to judicial review of the same standard afforded to other constitutional functionaries as held in the cases of BP Singhal v. Union of India and Kihoto Hollohan v. Zachilhu. On facts, the majority notes that the decision of the Governor can be faulted on the ground of constitutional impropriety since the Governor has no formal role to play in the removal of the Speaker or disputes between the political parties. The Majority seems to limit the formal role of the government to if and when the situation escalates to a point where the Government has seemingly lost majority to summon a floor test. However, in this case it is evident that the Governor’s actions were pre-mature for he failed to pause to engage with the Council of Ministers to discuss any possibility of pre-poning that the Chief Minister could refuse in the first place. Justice Lokur’s opinion further supplements the findings on constitutional impropriety by noting that the Governor in fact ignored the resolution of the Cabinet denouncing the Governor’s actions. This demonstrates that the Court was conscious that it was entering a seemingly political arena only after all political negotiations between the constitutional functionaries had failed to yield an amicable result.

In all, the decision of the Supreme Court in Nabam Rebia is a welcome development in the jurisprudence of the Court in adjudicating scenarios that warrant a balance between exigencies of governance and the constitution.

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Filed under Governors, Judicial Review, State Assembly

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