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:
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 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.
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.
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