This article has been written by Ms. Vaaghdevi, a student studying B.A.LLB from Damodaram Sanjivayya National Law University, Visakhapatnam. The author is a 1st-year law student.
Introduction:
Nabam Rebia and Bamang Felix Vs Deputy Speaker, famously known as the Arunachal Pradesh President’s Rule was adjudged by the Supreme Court over the Governor’s discretion and scope of judicial review against the Governor’s functions. It was held that the Governor can use his discretion only with the aid and advice of the Council of Ministers. This is said to be one of the landmark judgments in the history of democratic India. It was one of the biggest blows to the BJP government when Supreme Court gave the judgment of restoring back Congress-led Nabam Tuki government in the state of Arunachal Pradesh.
Facts of the case:
Nabam Tuki won the election for Arunachal Pradesh in 2011 with a complete majority of 49 seats out of 60. In Arunachal Pradesh, a constitutional crisis erupted between November 2015 and March 2016. 47 members of the Indian National Congress, who had the majority at the time, 11 members of the Bharatiya Janata Party (BJP), and two more independents made up the House of 60 at that time.In 2015, the newly elected chief minister was overthrown by 20 members of the Congress, 11 members of the BJP, and two independent MLAs.13 members of the Assembly, comprising 11 BJP MLAs and 2 independent MLAs, wrote a letter to the Governor on November 19, 2015, criticising the Speaker and the Government. The disaster started when 21 Congress MLAs rose up against the then-ruling administration and demanded the ouster of Arunachal Pradesh’s Speaker Nabam Rebia and Chief Minister Nabam Tuki, who were supported by the opposition. They also opted not to attend party gatherings, blaming the Chief Minister for their concerns. They alleged that the Chief Minister had seriously wasted money and mismanaged his finances. Without consulting the Chief Minister, Governor Rajkhowa also moved the Assembly session from 14 January 2016 to 16 December 2015 and added the Speaker’s dismissal to the January 2016 agenda. The Deputy Speaker overturned the Speaker’s decision to disqualify 14 people who rebelled against the newly formed government on December 15, 2015, on the grounds that they left before the Assembly even convened. After leaving the party to openly align themselves with the opposition, the rebels asked the governor to order CM Nabama Tuki to hold a trust vote in the Assembly. The resolution to dismiss Speaker Nabam Rebia was approved on December 16.All of this was done without consulting the Chief Minister or the Council of Ministers. The session was stopped as the ruling administration declared the advances to be unlawful. The Speaker was ousted from his position by a vote of 33 MLAs present in a community hall, and the Chief Minister was fired the next day. The newly appointed Chief Minister is Kalikho Pul. The Guwahati government was persuaded by Speaker Rebia to contest a number of events, including the Assembly’s advancement.
Gauhati High Court heard a case challenging Speaker Rebia’s ouster due to “an extraneous and inappropriate exercise of constitutional authority.” (ii)On January 5, 2016, the High Court delayed the removal of Congress MLAs from office and rejected the Speaker’s petition, ruling that neither the Governor’s authority under Article 163 nor the legislative process under Article 212 may be challenged in court and that both are constitutionally valid. The Assembly and Governor did not act arbitrarily. After that, a Supreme Court appeal was submitted, and the case was then given to a 5-judge panel for additional review.
.Issues:
Whether the Governor’s choice to reschedule the Assembly session was legal?
Whether the Speaker’s act of disqualification of MLA’s when a motion for his impeachment was pending before the house was constitutional ?
Contention of Respondent:
According to Article 163 of the Constitution, when performing his duties, the Governor of a State must consult with the Council of Ministers. Only when necessary may he use his discretion. Even if the Governor has discretion, it should be regarded as “constitutional,” according to Speaker Rebia. While the Deputy Speaker argued that the Governor’s decision was unchecked by the courts and absolute. The Court affirmed that the Governor is always bound by constitutional requirements and does not have a lot of discretion.
The Governor is granted the authority to call, prorogue, or dissolve the State’s legislature under Article 174. The Court came to the conclusion that the powers granted under Article 174 were not subject to the Governor’s discretion. As a result, he was unable to call the House, set its schedule for legislation, or address the legislative assembly without seeking advice.
According to Article 179(c) of the Constitution, a Speaker may be dismissed from office by an Assembly resolution approved “by a majority of all the then members.” Significantly, the arguments in the Constituent Assembly show that the more exact phrasing “all the then members” was favoured to “members present and voting.” The Court came to the conclusion that Speaker Rebia’s move to exclude rebel MLAs from voting was an effort to circumvent the will of the “all the then members” and avoid exclusion
Contention of Petitioner:
The petitioner, who was asking for a review of the high court’s decision, argued that the Governor’s participation and behaviour went beyond his or her statutory authority and violated Articles 161 (the governor’s power to pardon) and 163(2). (discretion of the government is final).
The speaker further argues that it is “constitutionally unlawful” for him to decide to remove a member from office in accordance with the anti-defection law while a vote of no-confidence is being held against him.The petitioners relied on the general idea of responsible governance to make the case that the Council of Ministers, who are elected representatives and are answerable to the people, should be the only ones in charge of governance rather than the governor, who is a nominated official. The summons authority cannot be linked with a general discretionary power, according to Article 174 of the Constitution (Sessions of the State Legislature, prorogation and dissolution).
Judgement:
The Supreme Court settled the question of governor’s discretion and the ‘scope’ of judicial review over governor’s functions. A five-judge Supreme Court panel made up of Justices J.S. Khehar, Dipak Misra, M.B. Lokur, P.C. Ghose, and N.V. Ramana held in a unanimous decision on July 13, 2016, that the Governor’s authority to call, adjourn, and advance a session is subject to judicial review. The majority opinion was written by Justice Khehar on behalf of Justices P.C. Ghose and N.V. Ramana. Justices M.B. Lokur and Dipak Misra each issued a concurring opinion.
The Supreme Court ruled in 2016 that the Governor must seek the Council of Ministers’ advice before he or she can call a special session of the House. The court highlighted further that as the governor is not a member of the elected government but rather the President’s choice, he or she is not entitled to veto authority over the lawmakers who make up the Houses of the legislature. The democratic values enshrined in the Constitution would be compromised if the governor was permitted to override the state legislature or the state executive. The Governor may call a special session of the State Legislative Assembly, dissolve it, and prorogue it, according to Article 174 of the Indian Constitution. According to Article 163, the Governor may only exercise this authority with the assistance of the Chief Minister and the Council of Ministers. When the Chief Minister has lost support in the legislature, the Governor may employ the discretionary power granted by Article 174. It was also established that the Governor’s discretionary authority does not extend beyond the rights granted under Article 174 to summon, prorogue, and dissolve the House. The Court ruled that the Governor does not have broad discretionary powers and that they are subject to the constitution. As a result, he is unable to call the House, address the Assembly, or set agendas without consulting Ministers.
The next issue under discussion was whether or not the Speaker may disqualify MLAs while a move for his removal was still ongoing. According to Article 179(C), a Speaker may be dismissed from office by a vote of “all then members” (assembly members who are present and voting). The Speaker’s move to disqualify the MLAs, according to the court, was an effort to thwart the votes of all the members present at the time and avoid being fired. It was argued that this was unconstitutional. The State administration was overthrown on January 6, 2016, by the Central government, which thereafter imposed President’s control. Nabam Tuki was appointed Chief Minister when Curt overturned the President’s authority and restored the State government to power, but he was quickly ousted from office by a floor test. The Court’s decision was reversed by politics.
References:
- Nabam Rebia and Bamang Felix V/S deputy speaker: Governor’s discretion and Judicial Review (no date) Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-10055-nabam-rebia-and-bamang-felix-v-s-deputy-speaker-governor-s-discretion-and-judicial-review.html (Accessed: February 14, 2023).
- Team, L.C.I. (2022) Nabam Rebia judgment: Explained, lawyersclubindia. Lawyersclubindia.com. Available at: https://www.lawyersclubindia.com/articles/nabam-rebia-judgment-explained-15158.asp (Accessed: February 14, 2023).
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