NABAM REBIA AND ETC. ETC. vs. DEPUTY SPEAKER .

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISIDCTION

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 JUDGMENT 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 1 Page 1 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. 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. JUDGMENT 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 2 Page 2 (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

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 JUDGMENT 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 3 Page 3

JUDGMENT 4 Page 4

JUDGMENT 5 Page 5

JUDGMENT 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 6 Page 6 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 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 JUDGMENT 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 7 Page 7

JUDGMENT 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 8 Page 8

JUDGMENT 9 Page 9 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 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, JUDGMENT 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 10 Page 10 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

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 JUDGMENT 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 st all Party MLAs and Leaders on 1 September 2015 making it clear 11 Page 11

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: th “No.CM(AP – 11/2015 dtd 05 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 th all members of Congress Legislature Party (CLP) convened on 8 th November, 2015(Sunday) at 4.30 PM repeat 8 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.” JUDGMENT 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: 12 Page 12

they contested his legitimacy, as leader of the INC. The said legislators, JUDGMENT 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. 13 Page 13 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

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.” JUDGMENT 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: 14 Page 14 “This meeting of the Congress Legislature Party, Arunachal Pradesh, rd held on today, the 3 December at 4.00 P.M. at Itanagar unanimously resolves to request the Party Leadership and the Congress High nd Command at Delhi, bringing to your kind attention a letter dated 2

JUDGMENT 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 15 Page 15

Chief Whip of the Congress Legislature Party – Rajesh Tacho. The text of JUDGMENT 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.” 16 Page 16 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,

– 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 JUDGMENT 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 17 Page 17 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

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 JUDGMENT 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 18 Page 18 passed by the Governor, has been assailed by the appellants. A relevant extract of the order, is reproduced below:

JUDGMENT 19 Page 19

JUDGMENT 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 20 Page 20 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),

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; JUDGMENT 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.” 21 Page 21 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

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, JUDGMENT 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 22 Page 22 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.

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 JUDGMENT 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 23 Page 23 No.APLA/D8/68/MEM/2015 15 DECEMBER, 2015 ORDER UNDER TENTH SCHEDULE TO THE CONSTITUTION OF INDIA AND RULE MADE THEREUNDER

JUDGMENT 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 24 Page 24

“…..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 JUDGMENT 25 Page 25

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 JUDGMENT 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 26 Page 26 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

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 JUDGMENT 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 27

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 JUDGMENT 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 28 Page 28 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,

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 JUDGMENT 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 29 Page 29 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

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 JUDGMENT (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 30 Page 30 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

33. Despite the challenges to the various orders passed by the High Court JUDGMENT 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 31 Page 31 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

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 JUDGMENT 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 32 Page 32 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

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 JUDGMENT 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 33 Page 33 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

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 JUDGMENT 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 34 Page 34 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

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. JUDGMENT 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 35 Page 35 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.

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 JUDGMENT 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 36 Page 36 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

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 favoured be except for reasons of emergency and these discretionary JUDGMENT 37 Page 37 powers must be done away with. I hope this amendment of mine will commend itself to the House. I move, Sir.

JUDGMENT 38 Page 38

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. JUDGMENT 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 labouring be 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 39 Page 39

40 Page 40

JUDGMENT 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 41 Page 41

"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."

42 Page 42

43 Page 43

responses, highlighted above. 43. Reliance was then placed on the decision rendered by a Constitution 1 Bench of this Court in Samsher Singh v. State of Punjab . 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 JUDGMENT 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 2 placed reliance on the decision in Sardari Lal v. Union of India , 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 44 Page 44 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

1 Samsher Singh case was decided by a seven-Judge Bench, which examined 2 the correctness of the decision rendered in the Sardari Lal case . While 1 debating the issue, this Court in the Samsher Singh case , 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) JUDGMENT 45 Page 45

xxx xxx xxx 30. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123 , 213 , 311(2) proviso 317 (c), , 352 (1) , 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of JUDGMENT 46 Page 46 the said business. The Rules of Business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the Rules of Business made under these two articles viz., Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.”

Governor, would have to be based on the aid and advice of the Council of Ministers (with the Chief Minister as the head), and in the instant case, it is apparent, that the Governor had acted on his own, while issuing the order dated 9.12.2015, for summoning the House for 16.12.2015, under Article 174. It was pointed out, that the Governor in the above order had himself recorded, that “… I may not be bound by the advice of the Council of Ministers …” and had also expressed therein, “… it is a constitutional obligation on my part to ensure that the resolution for removal of the Speaker is expeditiously placed before the Legislative Assembly …”. And likewise, the message of the Governor dated 9.12.2015, directing that the JUDGMENT composition of the House should not be changed, and the manner in which the business of the House was to be conducted when it assembled on 16.12.2015, was issued without any aid and advice. 1 45. Based on the conclusions recorded in the Samsher Singh case , it was contended, that the disqualification process contemplated under the Tenth Schedule, is of no concern, of the Governor. While, it was acknowledged, that the Tenth Schedule was introduced into the Constitution, to maintain and sustain the process of democratic governance, and therefore, the same could not be put on a backburner or suspended. Learned counsel was 47 Page 47 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

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 JUDGMENT discharge his functions in his individual discretion/judgment. Reliance in 3 this behalf, was placed on PU Myllai Hlychho v. State of Mizoram . 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. 4 5 KA Brhyien Kurkalang , Bhuri Nath v. Sate of Jammu & Kashmir , and 6 Samatha v. State of A.P. . 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 48 Page 48 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

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 – JUDGMENT “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. 49 Page 49

JUDGMENT 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 50 Page 50

JUDGMENT 51 Page 51 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:

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 JUDGMENT 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 52 Page 52 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

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 JUDGMENT 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. 53 Page 53 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 JUDGMENT 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. 54 Page 54 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

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.” JUDGMENT 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 55 Page 55 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. JUDGMENT 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. 56 Page 56 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

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. 7 Kashinath G. Jalmi v. The Speaker : “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 JUDGMENT 7 (1993) 2 SCC 703 57 Page 57

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, JUDGMENT 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 58 Page 58 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

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 JUDGMENT 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 59 Page 59 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.

“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 JUDGMENT 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), 60 Page 60 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

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, JUDGMENT 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 61 Page 61 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 JUDGMENT 62 Page 62 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 JUDGMENT 63 Page 63

JUDGMENT 64 Page 64 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 JUDGMENT 65 Page 65

JUDGMENT 66 Page 66

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 JUDGMENT 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 67 Page 67 from Part-I and Rules 13 and 14 from Part-II, which are being extracted hereunder:

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 JUDGMENT 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 68 Page 68 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

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.” JUDGMENT 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 69 Page 69 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 JUDGMENT 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, th We the Members of the 6 Arunachal Pradesh Legislative Assembly do here by move this resolution as per the Articles and Rules quoted in 70 Page 70

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 JUDGMENT 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 71 Page 71 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:

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. th Kindly ensure that replies of above points are sent latest by 8 December, 2015. Yours faithfully, signed (illegible) 07.12.2015 (Minik Damin) Deputy Secretary to Governor” JUDGMENT 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 th dated 7 December, 2015 on the above mentioned subject, I am to 72 Page 72 furnish the following information required by you for kind perusal of His Excellency, the Governor. th : 16 November, 2015. 1. Date of Receipt of the Notice of the Resolution of the Legislative Assembly.

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 JUDGMENT 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 73 Page 73 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

“N O T E th Today dated 8 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 JUDGMENT 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 74 Page 74 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

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 JUDGMENT 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 75 Page 75 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

LA/Leg.26/2015, is extracted hereunder:- th “Dated Naharlagun, the 8 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 JUDGMENT 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 76 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

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 JUDGMENT 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, 77 Page 77 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 rd dated 3 November, 2015 under 174(1) of the Constitution of India; and (ii) Message under article 175 (2) of the Constitution of India.

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. JUDGMENT 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 78 Page 78 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.”

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 JUDGMENT 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 th 1. LA/LEG-23/2015 14 December, 2015 Receipt No. 6246 dated 14.12.2015 th 2. LA/LEG-24/2015 8 December, 2015 Receipt No. Nil, dated 8.12.2015 th 3. LA/Leg.26/2015 8 December, 2015 Receipt No.6127 dated 79 Page 79 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 –

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 JUDGMENT 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 80 Page 80 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

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 JUDGMENT 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 81 Page 81 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

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 JUDGMENT 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 82 Page 82 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

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. JUDGMENT th You have however called the next session on the 6 Arunachal th Pradesh Legislative Assembly to meet on 14 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 th the summons issued for the House to meet on 14 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 83 Page 83 gravely and irreversibly affect the ends of justice as guaranteed in the said Constitutional provisions and Rules.

procedure of the House, such a resolution was required to be considered JUDGMENT 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 84 Page 84 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

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 JUDGMENT 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 85 Page 85

December, 2015.” 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 JUDGMENT 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 86 Page 86 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.

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 JUDGMENT 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 Page 87 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

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 JUDGMENT 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 Page 88 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

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 JUDGMENT 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: 89 Page 89

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: TH “ MINUTES OF THE MEETING OF THE CABINET HELD ON 14 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) JUDGMENT The Cabinet Secretary welcomed the Hon’ble Chief Minister and his Council of Ministers. TH AGENDA ITEM NO.1. DISCUSSION ON THE MESSAGE DATED 9 DECEMBER, 2015 OF THE GOVERNOR OF ARUNACHAL PRADESH TH FOR PRE-PONEMENT OF THE ASSEMBLY SESSION FROM 14 TH JANUARY 2016 TO 16 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: th The State Cabinet at its meeting held on 14 December, 2015 at 1000 hrs in CM’s conference hall again discussed in detail the Order 90 Page 90 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.

be shown to this Court. The fact that an attempt was made by the Chief JUDGMENT 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 91 Page 91 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: As the Govt. is aware of the fact that a serious law and order th problem is likely to take place on 16 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 th th Assembly building w.e.f. 15 – 18 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 th th th th premises on 15 , 16 , 17 and 18 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” JUDGMENT 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 92 Page 92 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

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 JUDGMENT 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 93 Page 93 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

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 JUDGMENT 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 94 Page 94 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

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 JUDGMENT 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. 95 Page 95 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

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 JUDGMENT 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 96 Page 96 (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

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 JUDGMENT 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 97 Page 97 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,

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 JUDGMENT 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 98 Page 98 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

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 JUDGMENT 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 99 Page 99 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

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 JUDGMENT 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 100 Page 100 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

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 JUDGMENT 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 101 Page 101 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

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 JUDGMENT 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 102 Page 102 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.

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 JUDGMENT 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 103 Page 103 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

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 JUDGMENT 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 104 Page 104 Article 174, was an issue on which reasonable persons could differ widely. As such, it would not be proper for any Court to interfere with, the time and place fixed by the Governor in summoning the Assembly. 95. On the subject of the power of the judicial review, with reference to

limited to situations wherein, it could be established that the President had exercised his discretion wantonly, whimsically or arbitrarily. It was urged that the same position would apply to decisions of Governors as well. It was submitted, that the appellants before this Court, were obliged to establish, that the Governor had acted deliberately in an unprincipled manner, and that, the action of the Governor would impair the constitutional trust assigned to him. On the present aspect of the matter, learned senior 8 counsel placed reliance on B.P. Singhal v. Union of India , and invited our attention to the following observations recorded therein: JUDGMENT “71. When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President on the advice of the Council of Ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. Therefore, while we do not accept the contention that an order under Article 156 is not justiciable, we accept the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor. 8 (2010) 6 SCC 331 105 Page 105

xxx xxx xxx 82. The President in exercising power under Article 156(1) should act in a manner which is not arbitrary, capricious or unreasonable. In the event of challenge of withdrawal of the pleasure, the Court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or malafides, in his removal, the Court will refuse to interfere. However, where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case. Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters, it is needless to say that there will be no interference unless a very strong case is made out. The position, therefore, is that the decision is open to judicial review but in a very limited extent. 83. We summarise our conclusions as under: (i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor JUDGMENT 106 Page 106

JUDGMENT Based on the legal position declared by this Court, it was submitted, that the prayer addressed by the appellants, to interfere with the discretion exercised by the Governor in his order, and his message dated 9.12.2015, ought to be rejected. 96. Learned senior counsel further contended, that interference with the action of the Governor could not be based on any alleged personal mala fides . It was asserted, that established malice in law only, could lead to an 107 Page 107 adverse inference. In this behalf, reliance was placed on S.R. Bommai v. 9 Union of India , wherein it has been held as under:

JUDGMENT 9 (1994) 3 SCC 1 108 Page 108 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

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 JUDGMENT 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 109 Page 109 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

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 JUDGMENT 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 10 (1979) 3 SCC 324 110 Page 110 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

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, 11 reference was made to K.A. Mathialagan v. P. Srinivasan , 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. 12 Governor of Goa , 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 JUDGMENT 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.) 53 111 Page 111 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

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 JUDGMENT 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 112 Page 112 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

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 JUDGMENT 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 113 Page 113 13 11 Dang , the K.A. Mathialagan case , and Nipamacha Singh v. Secretary, 14 Manipur Legislative Assembly . 102. It was also submitted, that the Tenth Schedule, was added to the Constitution, by the Constitution (Fifty-second Amendment) Act, 1985

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 JUDGMENT 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) 7 114 Page 114 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

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 JUDGMENT 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 115 Page 115 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

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, JUDGMENT 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 116 Page 116 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

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 JUDGMENT 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 117 Page 117 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,

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 JUDGMENT 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 118 Page 118 (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

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 JUDGMENT 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 119 Page 119 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) th 17 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. JUDGMENT th It is reported that, in a high political drama, on 16 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 st Committee. On 1 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 120 Page 120

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. JUDGMENT 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 th High Court on 7 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. 121 Page 121

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 th 19 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 th in the State vide No.GS/I(C)-129/2014 (Vol-II) dated 17 October, 2015 and my subsequent Monthly Report for the Month of October, st 2015 No. G/ML/2015 dated 1 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. JUDGMENT 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) th Meeting was held at Rajiv Gandhi Bawan, Itanagar on 8 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 122 Page 122 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.

JUDGMENT 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. 123 Page 123 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.

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. JUDGMENT 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, 124 Page 124 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.

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 th Legislative Assembly slated to be held from 14 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. JUDGMENT 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 125 Page 125 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’.

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 JUDGMENT 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 126 Page 126 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

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 JUDGMENT 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 1 case , and in Madhya Pradesh Special Police Establishment v. State of 15 16 Madhya Pradesh , as also, in State of Gujarat v. Justice R.A. Mehta , and 13 especially in the Satya Pal Dang case , 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 1 127 Page 127 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

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 JUDGMENT 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 128 Page 128 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

Council of Ministers no longer enjoy the majority in the House. Reference 1 was also made to the Samsher Singh case (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 15 Establishment case , 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 JUDGMENT 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 16 Mehta case , wherein this Court while interpreting Article 163(2) concluded, that it would be permissible for the Governor to act without 129 Page 129 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,

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 JUDGMENT 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 17 Kesavananda Bharati v. State of Kerala , 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 17 (1973) 4 SCC 25 130 Page 130 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

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 JUDGMENT 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 131 Page 131 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

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 JUDGMENT 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 132 Page 132 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

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 JUDGMENT 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 133 Page 133 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.

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 JUDGMENT 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 134 Page 134 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

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 JUDGMENT 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 135 Page 135 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

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 JUDGMENT 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 136 Page 136

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 JUDGMENT 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 137 Page 137 Governor is mandated to exercise under Article 163(1), extend to situations provided for expressly “by or under” the provisions of the Constitution. It was asserted, that besides the functions assigned to a Governor under the Constitution, a Governor may be required to discharge functions and

may or may not be required to be performed, on any aid and advice. 1 Relying on the judgment in the Samsher Singh case , it was urged, that a seven-Judge Bench by way of illustration indicated, a number of situations, where the Governor could act without any aid and advice. It was 1 highlighted, that in the Samsher Singh case the Court emphasized, that the instances depicted in the judgment were only illustrative, and not exhaustive. A relevant extract of the above judgment is reproduced hereunder: “54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such administrator independently of his Council of Ministers. The other Articles which speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371A(1)(b) , 371A(1)(d) and 371A(2)(b) and 371A(2)(f) . The discretion conferred on the Governor means that as the Constitutional or formal head of the State the power is vested in him. In this connection, reference may be made to Article 356 which states that the Governor can send a report to the President that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. Again Article 200 requires the Governor to reserve for consideration any Bill which in his opinion if it became law, would so derogate from the powers of the High Court as to endanger the position which the High Court is designed to fill under the Constitution. JUDGMENT 138 Page 138

xxx xxx xxx 154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith's statement regarding royal assent holds good for the President and Governor in India: JUDGMENT Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable 139 Page 139 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.”

JUDGMENT Our attention was also drawn to the Madhya Pradesh Special Police 15 Establishment case , 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 18 (1982) 2 SCC 463 140 Page 140

JUDGMENT 141 Page 141

JUDGMENT Last of all, learned counsel placed reliance on the judgment of this Court in 19 Rajendra Singh Verma v. Lt. Governor (NCT of Delhi) , and our attention was invited to the following observations made therein:

19 (2011) 10 SCC 1 142 Page 142

would extend to issues where propriety requires him to discharge his JUDGMENT functions in his own discretion, as for instance, sanction of prosecution of a Chief Minister or a Member of the Council of Ministers. 125. It was urged, that the sequence of facts narrated by the learned counsel representing the respondents has highlighted a situation, where MLAs belonging to the INC did not support their own Chief Minister – Nabam Tuki. It was also highlighted, that the Speaker – Nabam Rebia, who ought to have been functioning as a neutral arbiter in the activities of the House, was demonstrating a partisan attitude by siding with the Chief Minister – Nabam Tuki. And in order to support the Chief Minister, the 143 Page 143 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,

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 JUDGMENT 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 144 Page 144 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

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 JUDGMENT 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 145 Page 145 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

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 JUDGMENT 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 146 Page 146 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

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, JUDGMENT 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, 147 Page 147 orders like the grant of pardon under Article 161, and orders passed by the President based on a report submitted by the Governor under Article 356, wherein limited judicial review is available. And fourthly, where the Governor acts without the aid and advice of the Council of Ministers headed

reading of Article 163(2). 129. To support his aforesaid contention, with reference to assailability of the order of the Governor dated 9.12.2015, as well as, the message of the Governor dated 9.12.2015, learned counsel placed reliance on the 12 Pratapsing Raojirao Rane case , and invited the Court’s attention to the following: “43. While dealing with Full Bench judgment of the Madras High Court the noted Constitutional Expert H.M. Seervai in "Constitutional Law of India", 4th Edition, Volume I, at page 2070, Note 18.79 has opined that the view taken by Full Bench that in respect of his official acts, the Governor is not answerable to the Court even in respect of a charge of mala fides is correct. 44. We concur with this position. We also agree with the learned author that in such eventuality Governor cannot be said to be under duty to deal with allegations of mala fides in order to assist the Court, which in effect would mean that he is answerable to the Court. 45. The Governor in terms of Article 156 of the Constitution holds office during the pleasure of the President. Any mala fide actions of the Governor may, therefore, conceivably be gone into by the President. Another effective check is that the Ministry will fall if it fails to command a majority in the Legislature Assembly. 46. Thus, the position in law is clear that the Governor, while taking decisions in his sole discretion, enjoys immunity under Article 361 and the discretion exercised by him in the performance of such functions is final in terms of Article 163(2) . The position insofar as the dismissal of the Chief Minister is concerned would be the same, since when the Governor acts in such a matter, he acts in his sole discretion. In both the situations, namely, the appointment of the Chief Minister and the dismissal of the Chief Minister, the Governor is the best judge of the situation and he alone is in possession of the JUDGMENT 148 Page 148 relevant information and material on the basis of which he acts. The result, therefore, would be that such actions cannot be subjected to judicial scrutiny at all.” 20 And on Mahabir Prasad Sharma v. Prafulla Chandra Ghose , wherefrom the Court’s attention was drawn to the following conclusions:

Reliance was also placed on Constitutional Law of India (Fourth Edition) Volume II, authored by H.M. Seervai, and the Court’s attention was drawn to paragraph 18.78 on page 2070 thereof, which is extracted below: “18.78 As to Brief Note (A), it is submitted that after the Sup. Ct.’s decision in Samsher Singh’s Case the proposition that the Governor is required to act in his discretion only by express provision 20 (1968) 72 C.W.N. 328 149 Page 149

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 JUDGMENT 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 150 Page 150

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 JUDGMENT 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, 151 Page 151 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

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 JUDGMENT 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 152 Page 152 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

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. JUDGMENT 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. 153 Page 153 133. 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

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 17 submitted, that this Court in the Kesavananda Bharati case 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 JUDGMENT 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. 154 Page 154 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. 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 JUDGMENT 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. 155 Page 155 137. 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,

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, JUDGMENT 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. 156 Page 156 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

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 JUDGMENT 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 157 Page 157 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

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 JUDGMENT 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 158 Page 158 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

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 JUDGMENT 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 159 Page 159 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

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 JUDGMENT 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 160 Page 160 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

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 JUDGMENT 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 161 Page 161 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

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.” JUDGMENT 162 Page 162 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:

We are of the considered view, that the inferences drawn in the Justice JUDGMENT 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 2 1 2 case and the Samsher Singh case . Insofar as the Sardari Lal case is 163 Page 163 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

2 in the Sardari Lal case . The position came to be reversed. This Court in 1 the Samsher Singh case 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 JUDGMENT 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, 164 Page 164 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

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 JUDGMENT 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. 165 Page 165 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

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. JUDGMENT Sixthly, in view of the conclusion drawn at Fifthly above, the judgments 20 rendered in the Mahabir Prasad Sharma case , and the Pratapsing Raojirao 12 Rane case , 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 166 Page 166

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 JUDGMENT 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 167 Page 167 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.

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 JUDGMENT 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. 168 Page 168 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

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 JUDGMENT 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, 169 Page 169 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

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 JUDGMENT 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 170 Page 170 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,

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 JUDGMENT 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 171 Page 171 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

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.” JUDGMENT 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 172 Page 172 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

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 JUDGMENT 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 173 Page 173 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

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 JUDGMENT 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, 174 Page 174 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

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 JUDGMENT 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 175 Page 175 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

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 JUDGMENT 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 176 Page 176 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

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 JUDGMENT 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 177 Page 177 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

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 JUDGMENT 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 178 Page 178 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

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 JUDGMENT 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 179 Page 179 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

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 JUDGMENT 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 180 Page 180 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

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 JUDGMENT 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 181 Page 181 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

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 JUDGMENT 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. 182 Page 182 161. 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.

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 JUDGMENT 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 183 Page 183 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

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 JUDGMENT 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 184 Page 184

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 JUDGMENT 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. 185 Page 185 165. 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 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 JUDGMENT 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 186 Page 186 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

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 JUDGMENT 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 187 Page 187 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

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 JUDGMENT 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 188 Page 188 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

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.” JUDGMENT 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 189 Page 189 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

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 JUDGMENT 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 190 Page 190 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

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 JUDGMENT 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 191 Page 191 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

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 JUDGMENT 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 192 Page 192 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

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 JUDGMENT 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 193 Page 193

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 JUDGMENT 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 194 Page 194 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

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 JUDGMENT 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 195 Page 195 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

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 JUDGMENT 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 196 Page 196 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

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 JUDGMENT 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 197 Page 197 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

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 JUDGMENT 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 198 Page 198 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

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 JUDGMENT 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 199 Page 199 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

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 JUDGMENT 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 200 Page 200 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

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 JUDGMENT 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 201 Page 201 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.

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 JUDGMENT 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 202 Page 202 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,

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 JUDGMENT 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 203 Page 203 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,

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 JUDGMENT 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 204 Page 204 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

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 JUDGMENT 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 205 Page 205 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.

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 JUDGMENT 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 206 Page 206 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

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 JUDGMENT 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 207 Page 207 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

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 JUDGMENT 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 208 Page 208 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

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 JUDGMENT 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 209 Page 209 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,

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, JUDGMENT 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 210 Page 210 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

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. JUDGMENT 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, 211 Page 211 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

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 – JUDGMENT 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 212 Page 212 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

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 JUDGMENT 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 213 Page 213 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

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 JUDGMENT 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 214 Page 214 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.

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 JUDGMENT 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. 215 Page 215 195. 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

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 JUDGMENT 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: 216 Page 216 (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

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. JUDGMENT (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. 217 Page 217 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. JUDGMENT 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. 218 Page 218 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)

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: JUDGMENT 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] 219 Page 219 Be it immediately clarified, we are not concerned with the second proviso. 4. The thrust of the matter is what interpretation is to

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. JUDGMENT 5. In State of Karnataka v. Union of India and 21 another 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 220 Constitution in particular. In that context, the learned Chief Justice spoke thus:-

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- JUDGMENT 221 Page 221

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.” JUDGMENT [emphasis added] 222 Page 222 The aforesaid paragraphs clearly convey that judicial interpretation cannot nullify, defeat or distort a constitutional provision or the interpretative process

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… .” JUDGMENT 6. In S.R. Chaudhuri v. State of Punjab and 22 others , a three-Judge Bench while dwelling upon the 22 (2001) 7 SCC 126 223 Page 223 manner in which the constitutional provisions are to be interpreted had observed thus:-

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 JUDGMENT from the Constitution Bench decision in M. Nagaraj 23 and others v. Union of India and others :- “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 Page 224 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 JUDGMENT 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 225 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

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. JUDGMENT 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 226 Page 226 the House of Commons of the United Kingdom, 24 Baroness Boothroyd , stated:-

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 JUDGMENT 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 th THE RT HON. BARONESS BOOTHROYD, The Role of the Speaker in the 20 Century, The Parliamentary History Yearbook Trust, Vol. 29, Issue 1, Feb 2010, page 136 227 Page 227 different and, the debate in the Constituent Assembly is indicative of the same:- To quote:-

JUDGMENT “Mr. President: The question is : 228 Page 228 “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.”

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 JUDGMENT 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 229 Page 229 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

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 JUDGMENT 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 230 Page 230 quite different than the situation enshrined under Article 191(2) which has been inserted by the Constitution (Fifty-second Amendment) Act, 1985. The

amendment, reads as follows:-

231 Page 231 Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule”. Article 191(2) stipulates that a person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State, if he is so disqualified under the Tenth Schedule. It is absolutely different than what has been envisaged under Article 191(1). Tenth Schedule pertains to disqualification on ground of defection. Paragraph 2 of the Tenth Schedule deals with decision on questions as to disqualification on ground of defection. The said paragraph is as JUDGMENT follows:- “ 6. Decision on questions as to disqualifi- cation 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 232 Page 232 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.

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 JUDGMENT 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 233 Page 233 disqualified by or under any law made by the Parliament. Therefore, it is necessary to sustain the elevated position the Speaker constitutionally enjoys

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 JUDGMENT 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 234 Page 234 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

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 JUDGMENT 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 235 Page 235 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,

office is under consideration and he is entitled to vote in

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 236 Page 236 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

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 25 v. Zachilhu and others , 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. JUDGMENT 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 Page 237

[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 26 and explained in Keshav Singh case 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”. JUDGMENT (Emphasis added) 26 (1965) 1 SCR 413 : AIR 1965 SC 745 238 Page 238 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

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 JUDGMENT 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 239 Page 239 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

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 JUDGMENT 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 Page 240 constitutional adjudication, if the Speaker is allowed to initiate proceeding under the Tenth Schedule of the Constitution after intention to remove him from his

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 JUDGMENT 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, 241 Page 241 because it is humility that forms the “foundation of 28 regard” . It is the ultimate constitutional virtue. .............................J. (Dipak Misra) New Delhi; July 13, 2016 JUDGMENT 28 Laozi, 570-490 BCE 242 Page 242 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

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 JUDGMENT 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. 243 Page 243 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

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 JUDGMENT by the Gauhati High Court in Pema Khandu v. The Speaker, Arunachal 29 Pradesh Legislative Assembly - 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 th MANU/GH/0118/2016 [decided on 30 March, 2016] 244 Page 244 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

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? JUDGMENT th Whether the message sent by the Governor of Arunachal Pradesh on 9 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 245 Page 245 Constitution. Section 50 of the Government of India Act, 1935 reads as follows:

(2) The Governor in his discretion may preside at meetings of the council of ministers. (3) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Act required to act in his discretion or to exercise 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 his discretion, or ought or ought not to have exercised his individual judgment.” 8. Two important expressions find mention in Section 50 of the Government of India Act, 1935 namely, “in his discretion” and “his individual judgment”. These expressions are noticed in several Sections of JUDGMENT the Government of India Act, 1935 and came up for discussion when Section 9 of the Government of India Act, 1935 (relating to the Council of 30 th Ministers) was discussed in the House of Commons on 28 February, 31 1935. In the debate, the view expressed by one of the Members of 30 9.(1) There shall be a council of ministers, not exceeding ten in number, to aid and advise the Governor-General in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion : Provided that nothing in this sub-Section shall be construed as preventing the Governor-General from exercising his individual judgment in any case where by or under this Act he is required so to do. (2) The Governor-General in his discretion may preside at meetings of the council of ministers. (3) If any question arises whether any matter is or is not a matter as respects which the Governor-General is by or under this Act required to act in his discretion or to exercise his individual judgment, the decision of the Governor-General in his discretion shall be final, and the validity of anything done by the Governor-General shall not be called in question on the ground that he ought or ought not to have acted in his discretion, or ought or ought not to have exercised his individual judgment. 31 http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-council-of-ministers 246 Page 246 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 32 assume that I have correctly interpreted the significance of these words.” JUDGMENT 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 cc1327-63 247 Page 247

Somervell) confirming the distinction between “in his discretion” and “his individual judgment” as mentioned above. The opinion expressed by the Solicitor-General was accepted by Mr. Churchill as the following discussion will demonstrate: “ The SOLICITOR- GENERAL (Sir Donald Somervell) In moving this Amendment, my hon. Friend has confined himself to asking two specific questions. He asks what is the distinction between individual judgment and discretion. The Bill has been drafted in this way: The words “individual judgment” are used in relation to actions by the Governor-General on his individual judgment in the ordinary sense of the word within the ambit in which normally he would be acting on the advice of his Ministers. If within that ambit it is sought to give the Governor-General special powers or responsibilities, then the words "individual judgment" are used. They are found, for example, in Clause 12. The words "in his discretion" are used where the Governor-General will be acting on his own judgment but in an area outside that field. For example, in Clause 11 the functions of the Governor-General in respect of defence are to be exercised by him in his discretion. It is a matter of drafting which, once apprehended, I think it will be agreed, is convenient and useful. JUDGMENT My hon. Friend asked one further point, whether when the words "individual judgment" are used the Governor-General can act without consulting his Ministers. The answer is that as quite obviously that action is in the field where normally he would be acting on the advice of his Ministers, no cleavage between them as to right actions can possibly have arisen, except of course as a result of something that has happened and has been discussed; but, of course, once he had decided that within that field action must be taken, he would take it. Take quite an impossible case. Suppose that Ministers simply do not turn up. Then, of course, he must take the action in order to carry out the obligations conferred upon him. I do not think that the sort of test of consultation or non-consultation is 33 http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-council-of-ministers 248 Page 248 really the clue to the meaning. The clue is that the words "individual judgment" are used in respect of powers within the area in which normally in ordinary times he would be acting on the advice of his Ministers. The words "in his discretion" are used in respect of powers and functions outside that area.

Mr. Somerville adverted to the opinion of the Solicitor-General and said: JUDGMENT “We are dealing here with a very weighty and special responsibility of the Governor-General. Sub-section (2) of the Clause provides that the Governor-General shall in the exercise of his powers "use his individual judgment," and according to the definition given to us by the Solicitor-General last week, exercising his individual judgment means that 35 before he comes to a decision he must consult his Indian advisers.” 12. This makes it abundantly clear that the expression “his individual judgment” obliges the Governor to take the aid and advice of his Council of Ministers but he is not bound by that advice and may act in his judgment. 34 http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-council-of-ministers 35 HC Deb 05 March 1935 vol 298 cc1787-887 to be found at http://hansard.millbanksystems.com/commons/1935/mar/05/clause-12-special-responsibilities-of 249 Page 249 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

36 his own responsibility.” 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 JUDGMENT 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. 250 Page 250 14. Apart from this explicit expression of intent, the overall distinction between the two expressions “in his discretion” and “his individual 37 judgment” was understood and accepted by Sir B.N. Rau who, in his

“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 38 could not be carried on in accordance with the provisions of the Act.” JUDGMENT 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 352 251 Page 251 (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.

“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. JUDGMENT 17. Article 143 of the draft Constitution was the subject matter of st discussion in the Constituent Assembly on 1 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 252 Page 252 the draft Constitution. The view expressed by Mr. Krishnamachari is as follows:

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 Page 253

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). JUDGMENT 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 254 Page 254 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.

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 40 observed.” JUDGMENT 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.500-502 255 Page 255 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

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 JUDGMENT 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 256 Page 256 communications, the President can and must intervene to bring in constitutional order. Historical background of Article 174 of the Constitution

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 JUDGMENT 41 the Council of Ministers. 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. 257 Page 257 24. In the Constituent Assembly, Article 153 of the draft Constitution as st on 21 February, 1948 substituted Section 62 of the Government of India Act, 1935 with the following:

(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 JUDGMENT 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 nd 2 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 258 Page 258 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 th Article 69 of the draft Constitution on 18 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, JUDGMENT 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 259 Page 259 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

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. JUDGMENT 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 260 Page 260 the Speaker or the Chairman would to my mind be a futile operation and 42 therefore no purpose will be served by accepting that amendment.” 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

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 JUDGMENT 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 Page 261 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

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. th 34. The parliamentary debate of 16 May, 1951 shows that when the Constitution (First Amendment) Bill was moved by Prime Minister JUDGMENT 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: 262 Page 262

35. When Prime Minister Jawaharlal Nehru replied to the debate on this nd aspect on 2 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 JUDGMENT 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 263 Page 263 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. …….. JUDGMENT ………… 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 264 Page 264 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 44 mischief.” (Emphasis is given by me).

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. JUDGMENT (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 265 Page 265 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

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 JUDGMENT 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. 266 Page 266 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

45 Jawaya Kapur v. The State of Punjab . The Constitution Bench of this

the Executive were briefly mentioned in the following words:

45 [1955] 2 SCR 225 (5 Judges) 267 Page 267 43. With reference to the interplay between the Legislature and the Executive, this Court acknowledged the supremacy of the Legislature over the Executive and held that, under the Constitution, the Governor who

44. The significance of this view is that it recognized that the Governor is only a formal or constitutional head. His executive functions are, therefore, dependent on the aid and advice given by the Council of Ministers. Since there is no provision enabling the Governor to act in “his individual judgment” the Governor is bound by the advice of the Council of Ministers with whose aid he acts. This is completely in harmony and consonance with 268 Page 268 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

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 46 Prasad Sharma v. Prafulla Chandra Ghose 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 JUDGMENT 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 th had been decided to call the Legislative Assembly on 18 December, 1967. 46. In view of the Chief Minister’s recalcitrance, the Governor dismissed st him and his Council of Ministers on 21 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 328 269 Page 269 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

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 JUDGMENT 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 270 Page 270 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

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 JUDGMENT 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 271 Page 271 unchecked decision “in his discretion” that a Chief Minister has lost the majority of the Legislative Assembly and then dismiss him. 47 51. Reference may now be made to State of Punjab v. Satya Pal Dang

th th th Statement was discussed in the Assembly on 4 , 5 and 6 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. th 52. On 7 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 th is till 6 May, 1968. Since the annual budget was not adopted no JUDGMENT st expenditure could be made in the State from 1 April, 1968. This led to a political and financial crisis of sorts. 53. Under these peculiar and extraordinary circumstances, the Governor th prorogued the Assembly on 11 March, 1968 in exercise of his th “constitutional powers” under Article 174(2)(a) of the Constitution. On 13 March, 1968 the Governor promulgated The Punjab Legislature (Regulation of Procedure in relation to Financial Business) Ordinance, 1968. Thereafter, th th on 14 March, 1968 the Governor summoned the Assembly for 18 March, 47 [1969] 1 SCR 478 (5 Judges) 272 Page 272 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.

th proclamation of the Governor dated 14 March, 1968 summoning the House was illegal and void and that he had no power to re-summon the House once th adjourned. Therefore, in accordance with the earlier ruling dated 7 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 JUDGMENT Bills. 56. Two writ petitions were filed in the Punjab & Haryana High Court challenging, inter alia , the prorogation and re-summoning of the Assembly, th the Ordinance issued by the Governor on 13 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 273 Page 273 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

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 JUDGMENT 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 th effective on 11 March, 1968 when the Governor issued a public 274 Page 274 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

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 JUDGMENT 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 48 up for consideration in Samsher Singh v. State of Punjab 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 Page 275 49 Constitution 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

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 st 18(3) [since deleted on 21 January, 1971] in the Sixth Schedule to the JUDGMENT 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) 276 Page 276 64. Explaining this, and referring to English constitutional law, which is incorporated in our Constitution, it was held in paragraph 32 of the Report:

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.” JUDGMENT 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 277 Page 277 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 :

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 JUDGMENT 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 Page 278 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

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 JUDGMENT ‘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 279 Page 279 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

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 JUDGMENT 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 51 Lal and Jayantilal Amritlal Shodhan v. F.N. Rana 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 Page 280

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, JUDGMENT 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 281 Page 281 given the more than blanket powers of the Governor that that decision approved or had nothing to do with Article 163 of the Constitution. 52 72. Pratapsingh Raojirao Rane v. Governor of Goa was yet another

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 th communication to the Chief Minister on 28 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 JUDGMENT 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 th about 8.35 p.m. on 29 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 53 282 Page 282 paragraph 37 of the Report that the Governor was entitled to exercise his individual discretion in appointing the Chief Minister and that this was not subject to judicial review. In coming to this conclusion, the High Court

referred to Mahabir Prasad Sharma and concluded that if the Council of Ministers refused to vacate its office then the Governor could withdraw his pleasure and that withdrawal of pleasure by the Governor was not open to judicial review. Carrying this a little further, the Court held in paragraph 46 of the Report: “Thus, the position in law is clear that the Governor, while taking decisions in his sole discretion, enjoys immunity under Article 361 and the discretion exercised by him in the performance of such functions is final in terms of Article 163(2). The position insofar as the dismissal of the Chief Minister is concerned would be the same, since when the Governor acts in such a matter he acts in his sole discretion. In both the situations, namely the appointment of the Chief Minister and the dismissal of the Chief Minister, the Governor is the best judge of the situation and he alone is in possession of the relevant information and material on the basis of which he acts. The result, therefore, would be that such actions cannot be subjected to judicial scrutiny at all.” JUDGMENT 76. The High Court did not address itself to the issue of prorogation of the Legislative Assembly since in view of the above it was held that the writ petition was not maintainable. 77. This decision too proceeds on the incorrect basis and assumption that the Governor is the best person to know whether the Chief Minister of a State has lost the confidence of the Legislative Assembly and is, therefore, entitled to exercise vast powers regarding withdrawal of his pleasure in 283 Page 283 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.

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 JUDGMENT 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 Page 284 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

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.” 54 81. The decision in the case of Pu Myllai Hlychho v. State of Mizoram 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 JUDGMENT discretion in the nomination of four members of the Mara Autonomous District Council (MADC) in terms of paragraph 2(1) read with paragraph 55 20-BB of the Sixth Schedule to the Constitution. 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 Page 285 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

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.” JUDGMENT 56 82. State of Gujarat v. R.A. Mehta 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 Page 286

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 JUDGMENT 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 Page 287 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.

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 JUDGMENT 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 288 Page 288 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

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.” JUDGMENT 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 Page 289 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

not give the Governor a general discretionary power to act against or 57 without the advice of his Council of Ministers. ” (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 JUDGMENT 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 4.3.08 290 Page 290 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].

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. JUDGMENT 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 291 Page 291 Assembly, but there has been no consistent practice in this regard. It was stated as follows:

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. 59 These have been mentioned in paragraphs 4.11.16 to 4.11.20 of the Report. 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: JUDGMENT (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. 292 Page 292 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) 60 of the Constitution is the Punjab Regional Committees Order, 1957. 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 61 Order, 1958 issued under Article 371(1) of the Constitution provided that JUDGMENT “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 th 28 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 th SRO 3524 dated 4 November, 1957 61 st SRO 446-A dated 1 February, 1958 293 Page 293 “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.”

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 JUDGMENT st Maharashtra) Order, 1994 which came into effect on 1 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. 294 Page 294 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.

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 JUDGMENT 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. 295 Page 295 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

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” 62 then there would be “saucy doubts and fears” of the arbitrary exercise of discretion by the Governor as has happened in the present case, and other JUDGMENT 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 296 Page 296 104. 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

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 JUDGMENT framed by the Legislative Assembly for regulating its procedure and the conduct of its business under Article 208 of the Constitution do not need 63 anybody’s approval, including that of the Governor of the State. 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. 297 Page 297 107. 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

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 JUDGMENT 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. 298 Page 298 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:

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 JUDGMENT 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 299 Page 299 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:

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 JUDGMENT 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 300 Page 300 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.”

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.” JUDGMENT 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 Page 301 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:

(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 JUDGMENT 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 302 Page 302 Schedule for consideration at a meeting of the Cabinet. Rule 14 reads as follows:

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 JUDGMENT 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 303 Page 303 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

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 JUDGMENT 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 304 Page 304 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

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.” JUDGMENT 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 305 Page 305 125. 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

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. JUDGMENT 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 306 Page 306 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.

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 th Legislative Assembly was summoned to meet at 10.00 a.m. on 14 January, th 2016 to 18 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 JUDGMENT of the Assembly and the Chief Minister of Arunachal Pradesh. th 129. Thereafter, on 19 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. 307 Page 307 th rd 130. By an Order issued on 9 December, 2015 the Order of 3 November, 2015 summoning the Assembly was modified by the Governor on the ground, inter alia , of his constitutional obligation “to ensure that the

th th January, 2016 to read 16 December, 2015 and the date of 18 January, 2016 th to 18 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 64 Pradesh Legislative Assembly required expedition; (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 JUDGMENT 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. 308 Page 308 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

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: JUDGMENT 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 rd of India to a date earlier than the date mentioned in the summons dated 3 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 309 Page 309 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

Assembly earlier decided upon in consultation with the Speaker of the Assembly and the Chief Minister of Arunachal Pradesh. th 133. On 14 December, 2015 that is two days before the Assembly was to meet, the Council of Ministers of Arunachal Pradesh met and considered th Agenda Item No. 1 being “Discussion on the message dated 9 December, 2015 of the Governor of Arunachal Pradesh for pre-ponement of the th th Assembly session from 14 January, 2016 to 16 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: JUDGMENT th The State Cabinet at its meeting held on 14 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 310 Page 310 Court of Gauhati has fixed the hearing of the case of resignation of 2 th MLAs from the Assembly on 16 December, 2015. Therefore, the Cabinet resolves and advises, His Excellency, the Governor th of Arunachal Pradesh to recall and cancel the Order and Message dated 9 th December, 2015 and allow the Session to be convened on 14 January, 2016 as already ordered and scheduled.

134. As per the list of dates and events supplied to us, the Speaker urged th the Governor by a communication of 14 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 JUDGMENT 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 311 Page 311 th ignored the resolution of the Cabinet of 14 December, 2015 even assuming the communication of the Speaker did not reach him. 136. Our Constitution expects all constitutional authorities to act 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]. JUDGMENT (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. 312 Page 312 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

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 JUDGMENT 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 constitutional or formal head - nevertheless like everybody else, he has to 313 Page 313 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

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. JUDGMENT 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. 314 Page 314 65 140. In the Case concerning Electtronica Sicula S.P.A. (ELSI) the International Court of Justice described arbitrariness in the following words:

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. JUDGMENT 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.15 315 Page 315 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

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 th of Ministers taken on 14 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 JUDGMENT 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 rd provisions” of the Constitution (not necessarily Article 356) on 23 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 316 Page 316

My honourable Friend Prof. K.T. Shah in expatiating upon the merits of the Constitutional system based upon the principle of separation, did not fully realize the inevitable conflict and deadlock which such a system might result in a country circumstanced as India is. The breakdown provisions in the Constitution are not intended in any way to hamper the free working of democratic institutions or responsible Government in the different units, but only to ensure the smooth working of the Government when actual difficulties arise in the working of the Constitution. There is no analogy between the authority exercised by the Governor or the Governor-General under the authority of the British Parliament in the Constitution of 1935 and the power vested in the Central Government under the new Constitution. The Central Government in India in future will be responsible to the Indian Parliament in which are represented the people of the different units elected on adult franchise and are responsible to Parliament for any act of theirs. In one sense the breakdown provision is merely the assumption of responsibility by the Parliament at Delhi when 66 there is an impasse or breakdown in the administration in the Units.” 144. A further word may be said on “responsible government” in addition JUDGMENT to the views of the Constituent Assembly. The idea of a responsible 67 government was mentioned in U.N.R. Rao v. Indira Gandhi . However, there was no discussion on what constitutes or is expected of a responsible government other than an expression of a view that the Council of Ministers must enjoy the confidence of the House of the People. 68 145. In S.R. Chaudhuri v. State of Punjab it was observed that parliamentary democracy generally envisages (i) Representation of the 66 http://parliamentofindia.nic.in/ls/debates/v11p9m.htm 67 (1971) 2 SCC 63 (5 Judges) 68 (2001) 7 SCC 126 317 Page 317 People, (ii) Responsible government, and (iii) Accountability of the Council of Ministers to the Legislature. With regard to the characteristics of a responsible government, this Court referred to the Constitutional Law of

the following words: “The narrative must start with an exercise by the Governor-General of one of his exceptional reserve powers or personal prerogatives. In the formation of a Government it is the Governor-General’s duty to select the Prime Minister. He must select a person who can form a Government which will enjoy the confidence of the House of Commons. For reasons which will be explained later, the Governor-General rarely has any real choice as to whom to appoint: he must appoint the parliamentary leader of the political party which has a majority of seats in the House of Commons. But it is still accurate to describe the Governor-General’s discretion as his own, because unlike nearly all of his other decisions it is not made upon ministerial advice. When the Prime Minister has been appointed, he selects the other Ministers, and advises the Governor-General to appoint them. With respect to these appointments, the Governor-General reverts to his normal non-discretionary role and is obliged by convention to make the appointments advised by the Prime Minister. If the Prime Minister later wishes to make changes in the Ministry, as by moving a Minister from one portfolio to another, or by appointing a new Minister, or by removing a Minister, then the Governor-General will take whatever action is advised by the Prime Minister, including if necessary the dismissal of a Minister who has refused his Prime Minister’s request to resign.” JUDGMENT 146. In dealing with the situation in Arunachal Pradesh, the Governor was obliged to adhere to and follow the constitutional principle, that is, to be bound by the advice of the Council of Ministers. In the event that advice was not available and responsible government was not possible, the Governor could have resorted to the “breakdown provisions” and left it to the President to break the impasse. The Governor had the advice of the Council 69 (4th Edn., p. 243), Peter W. Hogg, Professor of Law, Osgoode Hall Law School, York University 318 Page 318 of Ministers but chose to ignore it; he assumed (well before the advice was tendered) that the advice would be such that he might not be bound by it; the Governor, despite being the ‘first citizen’ of the State, chose to take no steps

breakdown provisions and obtain impartial advice from the President.

confidence of a majority of the Members of that Chamber to remain in JUDGMENT 70 office.” If the Governor had any doubt about the continuance of a responsible government as a result of the shenanigans that were going on in Arunachal Pradesh at the relevant time, he could very well have required the Chief Minister to prove that he had the confidence of the Assembly, but he chose not to exercise this option also. In other words, all possible constitutional options were unilaterally discarded and disregarded by the th Governor in summoning the Assembly to meet on 16 December, 2015 and 70 The House of Commons Procedure and Practice, Second Edition, 2009 http://www.parl.gc.ca/procedure-book-livre/document.aspx? sbdid=a24e8688-cc45-4245-8f5c-dd32f4aa9b01&sbpidx=3 319 Page 319 th cancelling the session fixed for 14 January, 2016. The actions of the Governor were certainly not in the language of the law or the spirit of parliamentary democracy and responsible government. In these

Relations between the Governor, the Executive and the Legislature 148. The issue may also be looked at from an entirely different perspective based on the provisions of the Constitution. Part VI of the Constitution concerns the States and it consists of six chapters. Chapter I is general and consists of one definition. Chapter II relates to the Executive, that is, the Governor, the Council of Ministers, the Advocate General for the State and conduct of government business. Amongst other things, the ‘eligibility’ of a person to be appointed a Governor is provided for in this chapter. Article 158 of the Constitution provides that the Governor shall not be a Member of JUDGMENT Parliament or of a State Legislature and if such a Member is appointed as a Governor, he shall be deemed to have vacated his seat in the House when he enters upon his office as Governor. This is significant since it insulates the Legislature from the Governor. 149. Article 163 of the Constitution and the discretionary exercise of functions of the Governor comes under the heading of Council of Ministers and is suggestive of executive governance or executive issues concerning the Council of Ministers. In this context, reference may also be made to Article 320 Page 320 164 of the Constitution which provides for the appointment of the Chief Minister of the State by the Governor and the appointment of other Ministers on the advice of the Chief Minister. The appointment of the Chief Minister is

is not as if the Governor has untrammeled discretion to nominate anyone to be the Chief Minister of a State. Similarly, if the Governor chooses to ‘withdraw his pleasure’ in respect of a Minister he must exercise his discretion with the knowledge of the Chief Minister and not by keeping him in the dark or unilaterally. In this context, reference may be also be made to Article 165 of the Constitution which deals with the appointment of the Advocate General for the State. He is appointed by the Governor and holds office during the pleasure of the Governor and receives such remuneration as the Governor may determine. It cannot be anybody’s case that the Governor, JUDGMENT in exercise of his discretion, may appoint any eligible person as the Advocate General without any reference to the Council of Ministers and also ‘withdraw his pleasure’ at any time in respect of the Advocate General thereby removing him from his office. The purpose of all these provisions is to indicate that the discretion given to the Governor is not all-pervasive or all-encompassing as is suggested by learned counsel for the respondents. 150. That the functions of the Governor are limited to matters of executive governance or executive issues and the Council of Ministers is made explicit 321 Page 321 through Article 166 of the Constitution which provides that all executive action of the Government shall be expressed to be taken in the name of the 71 Governor, orders and instruments shall be executed in the name of the

the Ministers “in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” This clearly has reference to Article 163 of the Constitution and must be understood as meaning that framing the rules under Article 166(3) of the Constitution is not the discretion of the Governor but an executive exercise undertaken by the Council of Ministers. Article 167 of the Constitution relates to the duty of the Chief Minister of a State to communicate the decisions of the Council of Ministers to the Governor and furnish information to the Governor. Chapter II of Part VI of the Constitution is, JUDGMENT therefore, quite compact and delineates the relations between the Executive and governance of the State. 151. Chapter III concerns itself with the State Legislature and several aspects concerning the State Legislature. As far as the Governor is concerned, Article 168 in this chapter of the Constitution provides that the State Legislature shall consist of the Governor and its House(s). [However, in view of Article 158 of the Constitution the Governor is not a member of 71 Article 166(1) of the Constitution 72 Article 166(2) of the Constitution 322 Page 322 the State Legislature.] His status, therefore, for lack of a better word, is that of a constituent of the Legislature. What are his functions in this capacity? In Rai Sahib Ram Jawaya Kapur the Constitution Bench observed that: “It

may prorogue and dissolve the Legislative Assembly. Summoning the House JUDGMENT th was described by Pandit Jawaharlal Nehru in the debate on 16 May, 1951 on the First Amendment to the Constitution as “an indirect duty” of the President. He went on to say that by the President, he meant the government of the day. Applying this to Article 174 of the Constitution, the Governor is obliged to perform this indirect duty. Since this indirect duty is executive in character, it cannot be performed except on the aid and advice of the Council of Ministers so as to avoid a “futile operation” and subject to the procedure mentioned in the Rules referred to above. Proroguing and dissolving the 323 Page 323 House must also follow a similar procedure as summoning the House. It would be doing violence to all canons of interpretation if the discretion of the Governor in Chapter III is incorporated in Chapter IV and given a wider

making a special address under Article 176 of the Constitution would also be executive functions performed by the Governor on the aid and advice of the Council of Ministers. There can hardly be any dispute on this. Sending a message to the House under Article 175(2) of the Constitution might not strictly be an executive function but would fall in a separate category altogether which might be described as having a quasi-executive or quasi-legislative flavour. This entitlement specifically provided for in the Constitution is exercised by the Governor as a constituent of the Legislature and therefore not traceable to the aid and advise of the Council of Ministers. JUDGMENT 154. There are other executive functions that a Governor is required to perform with respect to the Legislature. Some of these are provided for in Article 180 of the Constitution (referred to above), Article 184 of the Constitution (which pertains to the Legislative Council and is in pari materia with Article 180 of the Constitution) and recruitment and conditions of service of secretarial staff of the Legislative Assembly or the Legislative Council as the case may be (Article 187 of the Constitution). If the provisions of Article 163 of the Constitution are read into all these executive 324 Page 324 functions relatable to the Legislature and the exercise of discretion of the Governor cannot be questioned (as contended by learned counsel for the respondents) then the Legislature could and would be dominated by the

dominate the Legislature! 155. It is not necessary for the present purposes to delve into the Governor’s role in legislative or quasi-legislative issues, such as assent to Bills (Article 200 and 201 of the Constitution), procedure in financial matters and legislative powers of the Governor (Chapter IV). Nor is it necessary to deal with the relations between the Governor and the Judiciary (Chapter V and Chapter VI of Part VI of the Constitution). All that need be said is that except in specified matters, executive functions of the Governor whether relating to governance issues or issues pertaining to the Legislature JUDGMENT are required to be performed by him on the aid and advise of the Council of Ministers and the Rules framed by the House. No discretion is available to him in these matters since he is bound by the advice given to him by the Council of Ministers and Article 163 of the Constitution cannot be imported into these matters. The only discretion available to the Governor under Article 163 of the Constitution is in respect of matters provided for by or under the Constitution not relatable to the Council of Ministers and the Judiciary. 325 Page 325 156. In the view that I have taken, the question relating to the interpretation of Article 175 of the Constitution and the validity of the message of the Governor becomes academic or does not arise and it is not necessary or even

73 thereon. 157. Therefore, I answer the first three questions in the negative and hold that the fourth question does not arise in the circumstances of the case. 158. The fifth and final question in these appeals is: Whether the Deputy Speaker of the Legislative Assembly of Arunachal Pradesh was entitled at law to set aside the order of the Speaker of the Legislative Assembly of Arunachal Pradesh by which the Speaker had disqualified fourteen Members of the Legislative Assembly of Arunachal Pradesh (including the Deputy Speaker) under the Tenth Schedule of the Constitution? JUDGMENT 159. The question here is not whether the disqualification of fourteen members of the Legislative Assembly is valid or not. That was a matter pending consideration in the Gauhati High Court when judgment in these appeals was reserved, but has since been decided. We are not concerned with the decision of the Gauhati High Court or the power or propriety of the decision of the Speaker. The narrow question is whether the Deputy Speaker th could, by his order dated 15 December, 2015 set aside the order of the 73 Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 326 Page 326 th Speaker also dated 15 December, 2015 disqualifying fourteen members of the Legislative Assembly including the Deputy Speaker himself. 160. The Speaker gave a notice to fourteen members of the Legislative

th Thereafter, by an order dated 15 December, 2015 the Speaker disqualified them from their membership in the Legislative Assembly. As mentioned above, the correctness of this order and the procedure followed has now been decided by the Gauhati High Court and the correctness of that decision is not before us. th 161. The Deputy Speaker passed an order on 15 December, 2015 inter alia , on the ground that the Speaker lacked the competence to pass the disqualification order and that he had not followed the constitutional and legal procedures. He had had lost his competence to pass the JUDGMENT th disqualification order since a notice of his removal dated 19 November, 2015 was pending and was to come up before the Legislative Assembly on th th 16 December, 2015. In passing his order of 15 December, 2015 the Deputy Speaker purported to derive his power from the message given by the Governor to the Legislative Assembly on 9th December, 2015 requiring the Deputy Speaker to conduct the proceedings of the House on the resolution for removal of the Speaker. What is important to note is that the th Deputy Speaker was to preside over the House on 16 December, 2015. He 327 Page 327 certainly had no derivative power from the message of the Governor dated th 9 December, 2015 to take over the functions of the Speaker or to sit in th judgment over the decision of the Speaker of 15 December, 2015.

Tenth Schedule of the Constitution acts as a Tribunal and his decision can be challenged only in a court exercising constitutional jurisdiction. It was held 75 in Kashinath Jalmi v. Speaker that even the Speaker does not have the power to review the decision taken by him under the Tenth Schedule of the Constitution. Under these circumstances, there is absolutely no question of the Deputy Speaker setting aside the order of the Speaker passed under the Tenth Schedule of the Constitution. 163. It is also important to note that the Deputy Speaker was himself disqualified from the membership of the Legislative Assembly by the JUDGMENT Speaker and he could certainly not have set aside the order passed against him and in respect of which he would be the beneficiary. There is no doubt that the Deputy Speaker had no authority at all to set aside the decision of the Speaker passed under the Tenth Schedule of the Constitution. The fifth question is answered in the negative. 164. In the view that I have taken, I am of opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker 74 1992 Supp.(2) SCC 651 75 (1993) 2 SCC 703 328 Page 328 taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen members of the Legislative Assembly does not at all arise in these appeals. Final order

January, 2016 passed by the Gauhati High Court is set aside. The th modification Order of 9 December, 2015 passed by the Governor of Arunachal Pradesh is unconstitutional and is set aside and the order of the th Deputy Speaker dated 15 December, 2015 setting aside the order of the Speaker of the same date is also set aside. ………………………..J New Delhi; (Madan B. Lokur) July 13, 2016 JUDGMENT 329 Page 329