Beyond the Horizon
By Pradeep Kumar
The government formation in Maharashtra has come under the Supreme Court’s scrutiny with the Centre, Maharashtra governor Bhagat Singh Koshyari, BJP Chief Minister Devendra Fadnavis and DyCM Ajit Pawar receiving notices.
In the 288-member Assembly, the BJP won 104 seats, while ally Sena bagged 56. The NCP bagged 54 seats and the Congress emerged victorious in 43 seats. However, after the political upheaval, the Sena-NCP-Congress combine claims support of 165 MLA, while the BJP has claimed that Fadnavis has the support of 170 MLAs. The majority mark in a House of 288 is 145.
This has uncanny similarities with Arunachal Pradesh political upheaval.
A Constitution Bench of the SC on 13.07.16 unanimously quashed Arunachal Pradesh Governor J.P. Rajkhowa’s decision to advance the Assembly session from January 14.01.16 to 16.12.15, a move which triggered political unrest in the sensitive border state and culminated in the declaration of President’s Rule on January 26.
A five-judge Bench, led by Justice J.S. Khehar, directed the immediate imposition of status quo ante as on December 15, 2015. This means that the Supreme Court has in unequivocal terms shown the door to the BJP-propped rebel Congress Govt of Khaliko Pul the door.
The Bench, in three separate judgments by Justices Khehar, Dipak Misra and Madan B. Lokur, paved the way for the return of Congress-led Nabam Tuki Govt to power.
The Bench, which was looking into the constitutionality of the Governor’s decision to override the authority of Assembly Speaker Nabam Rebia and advance the Assembly session, was told by the Tuki Govt lawyers that the Arunachal Pradesh “experiment” by the NDA Govt at the Centre to topple state Govts may prove “deadly” to the rule of law in the country and federal structure of the Constitution.
Justice Khehar, on February 22, the day the court reserved judgment on the question of the constitutionality of the Governor’s decision, assured the Congress lawyers of the power of the highest judiciary to put the clock back in the sensitive border State.
But the court, however, at the time did not deem it fit to intervene with the installation of Pul as CM on February 19, following the lifting of PR, leaving many with their finger crossed on the fate of this case.
‘Thrashing given to Constitution’: The Constitution Bench of the SC, which on Wednesday unanimously quashed Arunachal Pradesh Governor J.P. Rajkhowa’s order to advance the Assembly session, described in its 331-page judgment the happenings in Arunachal Pradesh leading to State emergency as a “thrashing given to the Constitution and a spanking to governance.”
The court pooh-poohed the Governor’s defence that his summoning the Assembly without the Cabinet’s nod could never be considered “anti-democratic.” In fact, he was only trying to bring the “democratic and legislative process” of the State into active animation, the Governor, a party in the petition, explained.
The Bench, through the majority judgment of Justices J.S. Khehar, P.C. Ghose and N.V. Ramana, reacted sharply, saying the Governor is not an “all-pervading super constitutional authority.”
The court said that a Governor is not an elected representative, but only an executive nominee whose powers flow from the aid and advice of the Cabinet. His tenure depends on the pleasure of the President. Using discretionary powers to summon or dissolve Assembly sessions without the aid and advice of the Chief Minister and his Cabinet is plainly unconstitutional.
“The governor is not an ombudsman for the Legislature nor the Speaker’s mentor. The governor cannot require the Speaker to discharge his functions in the manner he considers constitutionally appropriate,” Justice Khehar wrote.
The court held that what happens within the four walls of a political party is none of the Governor’s concern. “The Governor must remain aloof from any disagreement, discontent or dissension, within 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,” Justice Khehar wrote.
All Governor Rajkhowa did here, the court said, was to use his constitutional authority to ostensibly favour an “invalid breakaway group” of MLAs disqualified under the Tenth Schedule.
‘No role for Governor’
“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…. Any action taken by the Governor, based on the proceedings being carried on under the Tenth Schedule, would be a constitutional impropriety,” the court held.
The state underwent major political unrest since April 2015 when Congress expelled Kalikho Pul from the post of action Chief Minister. The State saw three CMs in 2015
Nabam Tuki: 1 November 2011 to 26 January 2016:
Kalikho Pul: 19 February 2016 to 13 July 2016
Nabam Tuki: 13 July 2016 to 17 July 2016
Pema Khandu: From 17 July 2016 onwards
Here is a timeline of the key events:
Nov 1, 2011: Congress leader Nabam Tuki takes change as CM. His brother Nabam Rebia takes charge as the Speaker.
Dec 2014: Tuki drops state Health and Family welfare minister Kalikho Pul during the Cabinet reshuffle.
Apr, 2015: Pul alleges financial mismanagement within the government. Congress expels him alleging anti-party activity.
June 1: Jyoti Prasad Rajkhowa takes charge as Governor.
Oct 21: Fifth session of Assembly concludes.
Nov 3: Governor orders summoning of sixth session of Assembly, to meet on January 14, 2016.
In the same month, Congress MLAs demand resolution for removing Deputy Speaker, while BJP MLAs demand resolution to remove Speaker.
Dec 9: Governor orders advancing the Assembly session from Jan 14, 2016, to Dec 16, 2015.
Dec 15: Speaker Nabam Rebia issues notice disqualifying 14 of the 21 rebel Congress MLAs.
Dec 15: Deputy Speaker quashes disqualification of 14 of the 21 MLAs.
Dec 16: Deputy Speaker says the Speaker’s decision that sixth session would not commence on Dec 16 was illegal.
Dec 16: Tuki government locks the Assembly. Corresponding assembly meeting held in another building, attended by 33 MLAs. The resolution for removal of Speaker Rebia is passed and a new speaker is appointed.
Dec 17: Rebels hold assembly in hotel after community hall is razed, vote against Tuki; elect Pul as CM. Rebia moves Gauhati HC to keep assembly and related developments in abeyance.
Jan 5, 2016: HC stays disqualification of 14 Cong MLAs.
Jan 6: SC agrees to hear plea of Arunachal Speaker, removed by rebel MLAs.
Jan 13: SC orders not to hold any proceedings in the Assembly till Jan 18.
Jan 14: SC refers Arunachal issue to Constitution Bench.
Jan 15: SC starts examining constitutional scope of discretionary powers of the Governor.
Jan 18: Congress tells SC that the Governor could not have acted on a resolution by opposition BJP MLAs and two Independents to advance the Assembly session.
Jan 25: Congress moves SC on recommendation for President’s rule in Arunachal.
Jan 26: Union Cabinet recommends President’s rule in the State.
Jan 27: President’s rule in Arunachal Pradesh comes under SC scrutiny. SC seeks the Governor’s report on recommending central rule in the state, saying “it is too serious a matter“.
Jan 28: Nabam Tuki files fresh plea in SC against President’s rule in Arunachal.
Jan 29: Centre files affidavit in SC justifying imposition of Prez rule in Arunachal Pradesh, says complete breakdown in State, Governor in danger.
Feb 1: SC recalls notice to Governor, says they are immune.
Feb 2: SC resumes hearing on pleas for examining Governor’s powers.
Feb 4: SC takes strong note of a submission that all decisions of Governor are not open to judicial review.
Feb 5: SC questions Governor’s order to advance Arunachal Assembly session to December last year from this January.
Feb 9: SC rejects plea of 2 rebel Congress MLAs against a Gauhati High Court decision upholding the action of the then Speaker accepting their resignations.
Feb 10: Governor Rajkhowa defends his actions in SC saying that the CM and the Speaker were “hand-in-glove” and trying to remain in power despite losing majority.
Feb 11: Governor can’t take away Speaker’s powers, says SC.
Feb 16: SC refuses to pass an interim order on Congress plea to restrain Governor from swearing-in new CM.
Feb 18: SC satisfied with Gauhati HC’s order staying disqualification of 14 MLAs, paves way for new govt in State.
Feb 19: SC rejects Congress’ plea for floor test in Arunachal assembly.
Feb 19: President’s rule lifted in the State.
Feb 20: Pul sworn as CM of Arunachal Pradesh.
Feb 22: SC reserves verdict on batch of petitions dealing with discretionary powers of Governor to summon or advance the assembly sessions, says it has the powers to undo the damage.
Jul 13: SC terms Governor’s decision unconstitutional, orders restoration of Cong government in Arunachal Pradesh.
Jul 14: Arunachal acting Governor of Pradesh Tathagata Roy asks CM Tuki to prove his majority on the floor of the Assembly by 16.07.16.
Jul 15: Nabam Tuki meets Arunachal Pradesh Governor Tathagata Roy to seek postponement of the floor test by at least 10 days. But Governor Roy rejects Tuki’s plea for deferring floor test slated for July 16.
Jul 16: Chief Minister Nabam Tuki resigns, a few hours ahead of the much-anticipated floor test. Pema Khandu, son of former Chief Minister Dorgee Khandu, has been elected as the chief of the Congress Legislature Party.
Aug 9: Former Arunachal CM Kalikho Pul found hanging
Sept 16: Pema Khandu quits Congress along with 43 prt MLAs, joins the People’s Party of Arunachal Pradesh (PPA). Nabam Tuki, Mr. Khandu’s predecessor, is the only MLA who chose to stay with the Congress.
Sept 22: President Pranab Mukherjee dismisses Arunachal Pradesh Governor J.P. Rajkhowa, after it became apparent that he was not going to quit as desired by the Centre.
Nov 19: BJP fields Dasanglu Pul, the third wife of former chief minister Kalikho Pul. She wins the by-election to Hayuliang constituency. The bypoll was held following the death of Kalikho Pul.
Dec 13: Kiren Rijiju rejects allegations of being involved in a Rs. 450-crore transportation scam at a hydel power project. Opposition Congress demands ouster of Rijiju from the union council of ministers and a CBI probe.
Dec 29: Pema Khandu and six other MLAs suspended for anti-party activities.
Dec 30: Takam Pario, PHED minister, is likely to be the next Arunachal Pradesh CM, informs PPA President Kahfa Bengia.