The Arunachal Impasse

The imposition of President's Rule in Arunachal Pradesh has triggered fresh debates regarding the power of governors to override decisions taken by the Council of Ministers of a state. Although originally, in the Constitution, it was intended to be used in the rarest of rare cases, President's Rule has been imposed on more than 100 occasions and has become a political tool rather than an emergency provision. The incident has thrown up a number of  questions requiring constitutional scrutiny, including power of governors, imposition of President's Rule and the Anti-Defection Law.

The series of events kicked off after 14 of the state's 47 Congress MLAs rebelled and joined the BJP in a house of 60. The Speaker disqualified the 14 'converts' under the Anti-Defection 10th Schedule of the Constitution. As per the Constitution, A member becomes disqualified a) if he voluntarily gives up his membership of such political party b) if he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by party in 15 days. The Speaker of the House has the power to decide on disqualifications due to defection, which the Arunachal Pradesh Speaker exercised. Thus the Congress still had a majority with 33 MLAs as the strength of the house reduced to 46 after the disqualifications.
The next Assembly session which was to be convened on January 14, 2016 was convened on December 16, 2015 by the Governor, contrary to the advice tendered by the Council of Ministers.  Not only that, Governor J.P. Rajkhowa sent message that the composition of the house will remain unchanged (to nullify disqualification of 14 defectors by the speaker) and set the agenda for discussion to remove the Speaker. In response to this, the Speaker asked home minister to cordon off the assembly building from illegal occupation. The rebel Congress, BJP and Independent MLAs met subsequently on December 16-17 in a community hall under the deputy speaker who had already been disqualified by the Speaker for having defected. The Governor's defence was that he was acting on resolutions sent to him by rebel Congress MLAs and opposition lawmakers for removal of speaker.
Article 174(1) of the Constitution says that 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 date appointed for its first sitting in the next session. But this does not mean that the Governor can exercise this power at his personal discretion. The Constitution, in Article 163, states that the Governor is to exercise his functions on the advice of the Council of Ministers, except in so far as he is required to exercise his functions in his own discretion. The second part of this article became a contentious issue as the government in Centre used this provision to impose President's Rule on states ruled by opposition parties. The Central Government appointed its loyalists as governors and made them recommend 'President's Rule' on their own discretion without consulting the state government. Article 163(2) of the Constitution says, If any question arises whether any matter falls within the Governor's discretion or not, decision of the governor 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. This article granted immunity to the Governor regarding actions he had taken in his own discretion. It was not until 1974 that the Supreme Court clarified that except in spheres where the governor is to act on the aid and advice of the council of ministers in the exercise of his powers and functions, he is not required to act personally without the aid and advice of the council of ministers or against their advice. Whenever Constitution requires satisfaction of the Governor, satisfaction is not personal satisfaction of Governor but is satisfaction of the Council of Ministers. The Governor has constitutional discretion in matters such as Reservation of a bill for the consideration of the President, recommendation of the imposition of President's Rule in a state and situational discretion in a few matters. Thus, advancing the session of the house without consulting the Chief Minister and the Council of Ministers may be seen by the Supreme Court as violation of constitutional law.
A constitution bench of the Supreme Court hearing the matter asked Governor J. P. Rajkhowa, how could he nullify the Speaker's powers to act under Schedule 10. As mentioned before, any question of disqualification arising out of defection is to be decided by the Speaker. Although this power of the Speaker is subject to judicial review (SC ruled in Kihoto Hollohan (1993)), the Governor has no power whatsoever in this regard.
But the most important issue to be addressed is the one pertaining to President's Rule. The very first question that must be asked is on what grounds was the recommendation of President's Rule based. The second question should be whether these reasons were sufficient for the Governor to recommend President's Rule. Before we delve into these questions, let us first examine what the Constitution says about the imposition of President's Rule. Article 356 empowers the President to issue a proclamation, if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution. The President can either act on a report of the governor of the state or otherwise too. It is clear from the text that President's Rule is to be recommended only if there is 'breakdown of constitutional machinery' in the state. In several detailed reports the Governor gave the reasons for invoking article 356. Some of the major ones are:

• A bison was sacrificed outside Raj Bhavan.
• The Chief Minister instigated youths to hold protests outside Governor's House using loudspeakers.
• Three dissident legislators accused that chief Minister Nabam Tuki had been 'engaging' with outlawed NSCN-K, a Naga militant group, to bring pressure on them for support.

A Constitution bench is already hearing the case and will soon give its verdict whether the recommendation based on the given reasons and the subsequent action by the Centre was valid or not. The SC has already ruled in SR Bommai case (1994) that a Presidential proclamation imposing President's Rule is subject to judicial review and can be struck down by the court if it is based on irrelevant or extraneous grounds or it was found to be malafide or perverse. In this case, one important point is to be mentioned is that the Governor claimed that the rebel Congress MLAs along with the BJP and Independent MLAs had formed a majority (the government had lost the confidence of the house) which compelled him to take up their resolution. This point can be refuted by the Supreme Court as in SR Bommai it had laid down the proposition that the question of the state government losing the confidence of the legislative assembly should be decided on the 'floor' of the House and until that is done the ministry should not be unseated. Furthermore, based on the report of Sarkaria Commission on Centre-State relations (1988), Supreme Court in SR Bommai enlisted situations where exercise of power under Article 356 could be improper. This contains the provision that exercise of power under 356 can be deemed improper where the governor makes his own assessment of the support of the ministry in the assembly and recommends imposition of President's Rule without allowing the ministry to prove its majority on floor of Assembly.

The matter is sub-judice in the Supreme Court which will determine whether the imposition of President's Rule and the actions of the Governor was in consonance with the provisions of the Constitution. Repeated attempts by various governments to impose President's Rule in Opposition-ruled states is a threat to democracy and the spirit of federalism. The mandate of the people of a state cannot be dismissed by the Central Government in order to achieve political gains and such 'backdoor entry' is to be condemned and remedied at the earliest. We must not forget, India is federal in form, but Union in spirit.

The journey from Bali to Nairobi and death of the Doha Development Round

The recently concluded Nairobi Ministerial Conference of the World Trade Organisation has effectively killed the 'Doha Development Round' and any chance of another 'Development Round' being initiated in the near future looks bleak as the developed countries have silently committed to non-reaffirmation of the Doha Round. India along with the other developing countries expressed thorough 'disappointment' over non-reaffirmation to conclude the 14 year old Doha Round pacts. The objective of the Doha Round was to improve the trading prospects of the developing and poor world (a Development Agenda).

The BALI package (9th Ministerial Conference)

The issue of public stockholding of food has always been a contentious issue. The developed countries demanded that the developing countries reduce agricultural subsidies under the Amber Box type (subsidies to fertilizer, electricity, fuel and assistance through minimum support price). As per the Agreement on Agriculture (under GATT), a maximum of 5% of the 'de-minimis level' can be spent on subsidies under Amber box, while for the developing countries it is capped at 10%. The 'de-minimis' level is the reference which is nothing but the production (of agriculture) of the year 1986-87. The developing countries, especially India feel that this is a discriminatory rule as the production capabilities of developing countries were poor in 1986-87 when compared to the developed countries as well as the fact that inflation was not taken into account. If statistics are to be compared although US is capped at 5% of the de-minimis level, it is much more than India's 10% as production in 86-87 was low. Developing countries like India strongly opposed this rule citing the need to spend more on subsidies for food security and income support for farmers. The Bali ministerial Conference took up the issue and tried to come up with a solution. The three outcomes of the Bali package are:

• LDC(Low Developing Countries) should get duty free, quota free market access to sell goods in all countries.
• Peace Clause
• Trade Facilitation Agreement(TFA)

Peace Clause - The WTO decided that it will not hear any case regarding violation of norms in its dispute-settlement body if any developing country exceeds its cap of 10% on Amber Box subsidies for four years(till 2017). A permanent solution was to be reached by the 11th Conference(2017). Subsidies only for food security/public stockholding were exempted.

The TFA was a major step towards reduction of Non-Tariff Barriers, especially red tape in customs clearance and licensing difficulties. Some of its features are:

1. Online applications and payment of taxes/fees.
2. Single window for document check
3. Faster clearance to perishable goods
4. No middlemen/agent needed
5. Coordination bodies at national and international level to be created to implement TFA.

Experts predicted that implementation of TFA would increase world GDP by $ 1 trillion and 21 million jobs will be created as export/import will rise. Although the deadline for the members to sign the TFA was 31st July 2014, Prime Minister Modi refused to sign it stating that a permanent solution needed to be reached on the food subsidy issue. The government feared that implementing the TFA would allow developed countries to have better market access and if WTO ruled in favour of the developed countries regarding the subsidy issue, the domestic farmers would be adversely affected by the import surges. Consequently, in November 2014, during President Obama's visit to India, a deal was made in which it was decided that the 'Peace Clause' would be extended to infinite time till a solution is reached. Thus, India's food security programs would not be challenged in the WTO and US promised to back India at the WTO.

The NAIROBI Package(10th Ministerial Conference)

India, along with other developing countries especially members of the G33, LDCs, the Africa Group and the ACP, wanted a reaffirmation of the mandate of the Doha round. They wanted the Doha round to continue till all outstanding issues, including on protection of poor farmers and food sovereignty are resolved. But rich countries wanted round to end and sought introduction of new issues that are of their interests including e-commerce, global value chains, competition laws, labour, environment and investments.
The Nairobi package contains series of six ministerial decisions on agriculture, cotton and issues related to LDCs. They are:

• Commitment to eliminate subsidies for farm exports. Developed members have committed to remove exports immediately while developing countries are to do so by 2018. LDCs have been given additional time to cut down export subsidies completely.
• Decision on Public Stockholding for Food Security commits members to engage constructively in finding a permanent solution to this issue.
• Decision on Special Safeguard Mechanisms for Developing countries provides them the right to temporarily increase tariff in face of import surges by using an SSM.
• Decision on duty free and quota free access of cotton from LDCs to markets of developed countries, calling for reforms in domestic cotton policies of LDC and asking developed countries to prohibit cotton export subsidies immediately and the developing countries at a later date.
• Decision adopted that will facilitate opportunities for LDC's export of goods to both developed and developing countries.
• Decision on giving preferential  treatment to LDC services and service suppliers.

The meeting was concluded without any commitment by developed countries to check their domestic subsidies. The developed countries refused to budge from their long standing position and instead blamed the developing countries for not taking any action regarding import duties.