The Supreme Court on Wednesday questioned Governor J.P. Rajkhowa’s use of his “constitutional discretion” to advance the sixth session of the Arunachal Pradesh Assembly by over a month, asking whether it was backed by sound constitutional principles or based on a mere whim.
Advancing the session from its scheduled date of January 14, 2016 to December 16, 2015 in order to remove Speaker Nebam Rebia triggered the entire political crisis leading to the imposition of President’s Rule on January 26.
“You can use constitutional discretion only if it is based on and only on a constitutional principle... What was the constitutional principle here? Does advancing the Assembly session come under your discretionary powers?” a five-judge Constitution Bench led by Justice J.S. Khehar repeatedly asked senior advocate T.R. Andhyarujina, appearing for Mr. Rajkhowa.
The Bench’s questions pertained to the order issued by Mr. Rajkhowa on December 9, 2015 to advance the Assembly session without consulting Chief Minister Nabam Tuki and his Council of Ministers under Article 174 (1) of the Constitution.
‘Resolutions by rebels’
The Governor was acting on resolutions sent to him by “majority” rebel Congress MLAs and Opposition lawmakers for the removal of the Speaker. They claimed that the Tuki government was in minority.
Instead of calling a floor test, the Governor invoked Article 174 (1) of the Constitution and ordered the session to be advanced for “facilitating the House to expeditiously consider resolutions for removal of Speaker.” In the order, the Governor claimed complete discretion, saying he is not bound by the aid and advice of the Chief Minister and his Cabinet.
December 9 also saw the Governor send a message to the House, directing it to list the subject of removal of the Speaker as the first item on its agenda.
“Did he get into the character of the Speaker? What was the urgency to remove the Speaker?” Justice Dipak Misra, on the Bench also comprising Justices Madan B. Lokur, P.C. Ghose and N.V. Ramana, asked.
Referring to its past judgments, the apex court said a Governor cannot assume constitutional discretion unless such powers are expressly provided in the specific Articles of the Constitution.
Since Article 174 (1) is silent on whether the Governor should consult or not the State Cabinet before advancing dates of the Assembly session, it is presumed that aid and advice of the Chief Minister and Council is required to be taken. “If you have a discretionary power, the Constitution will say so,” Justice Misra observed.
“The Governor is the defender of the Constitution. He is the protector of Constitutional principles,” Justice Misra pointed out.
Responding, Mr. Andhyarujina said Governor Rajkhowa found that it was an “imperative necessity to have the Assembly as soon as possible... It was found that the Speaker was hand-in-glove with the ruling party and changing the rules of the game.”
To this, the Bench asked if it was part of the duty of the Governor to sit in appeal on whether the Speaker was doing his constitutional duty or not.
“Was yours a constitutional apprehension at all? Were you not indirectly passing a restriction on the powers of the Speaker?” Justice Misra observed.
Mr. Andhyarujina said the “Governor is no great constitutional lawyer, but he had instincts. The situation in such a sensitive border State was chaotic. Politicians were fighting like anything. The ruling party had split in half. I, on behalf of the Governor, say he did the right thing... How long could he put up with these political tantrums, physical assaults and verbal abuse by members of the ruling party?”
He submitted that the court cannot sit in judgment on the Governor’s use of constitutional discretion “unless the discretion is totally irrelevant, nonsensical and unconstitutional.”