Saturday, February 4, 2023

SC lays down do’s and don’ts for governor in Arunachal

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The recent Supreme Court verdict restoring the Nabam Tuki government in Arunachal Pradesh has once again restored the sanctity of the federal structure of our constitution. In this verdict, the governor of Arunachal, JP Rajkhowa, has been taken to task by the apex court for exceeding his brief and sullying the constitutional post.

While reinstating the political situation that existed on December 25, 2015 in the state, the apex court has de jure brought back the dislodged Nabam Tuki government at the helm and removed the present government which has the numbers to rule. If media reports are to be believed, this is the first time that the court has done so. Earlier while striking down Article 356, citing its misuse, the court had only annulled the central rule in various states. Coming on the heels of the Uttarakhand judgment in May, it is a clear message by the judiciary that the centre can’t arbitrarily dislodge state governments through the governor and the president.

Nabam Tuki will have to prove his majority to stay in power
Nabam Tuki will have to prove his majority to stay in power

Rajkhowa was pulled up for his lack of judgment on the entire issue. According to The Times of India, the court  pointed out that it was not for the Governor to schedule the functioning of the assembly nor was it in his “domain to schedule the agenda of the House…The Governor must keep away from all that goes on within the House”. The court  repeatedly referred to his actions saying: “it is not within the realm of the Governor to embroil himself within any political thicket…” and also that “activities within a political party…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”. The court pointed out that he had “acted in a manner not only opposed to a rule of law but also opposed to the rule of law…in a manner that certainly surprises a sense of juridical propriety”.  The court held that a Governor cannot act on his own authority until the government has been dismissed after the floor test. Till then, he must act only on the aid and advice of the chief minister and the council of ministers.

Article 356 of the constitution makes provision for the president to take over all or any of the functions of the government of the state and also the governor’s functions in the event that the governor sends him a report and he is satisfied thereon that there is such a situation that the government of the state cannot be carried on in accordance with the constitution.

Dr BR Ambedkar, while framing this provision in the constitution, had expressed hope that such provisions would never have to be used and would become a dead letter. Contrary to his hopes, Article 356 has been an often-used provision, in fact more than 120 times since Independence. It has been a bone of contention between political parties, with accusations of misuse by ruling parties at the centre to quell opponents in the states being a frequent refrain. In 2015 and 2016 alone, we have witnessed two such cases in Uttarakhand and Arunachal Pradesh.

The 1994 Supreme Court judgment in SR Bommai vs Union of India sets out parameters by which the court can take a decision as to whether President’s Rule has been rightly imposed or not. Janata Party leader, SR Bommai, filed the case against the dismissal of his government in Karnataka in 1988, under Article 356. After 1988 in the next two to three years, President’s Rule was imposed in Meghalaya, Rajasthan, Madhya Pradesh and Himachal Pradesh.

The court had to examine various questions, including whether the president’s powers to impose central rule under Article 356 were unfettered. The Supreme Court held in the Bommai case that it is not an unfettered power but is only conditional. While Article 74 bars judicial review of the advice tendered by the council of ministers to the president, it does not bar the court from scrutinizing the material on the basis of which the decision was taken by the council of ministers and the president.

The guidelines set out in the Bommai case for examining whether Article 356 has been rightly imposed are:

  • The majority of the ruling party must be tested on the floor of the house.
  • The centre has to give a warning to the state with one week’s time to reply.
  • While the advice given by the council of ministers cannot be questioned, the material on which it is based can be. Therefore, the court is empowered to examine whether there was any material on the basis of which the decision was taken, was the material relevant enough and has there been “malafide use of power”.
  • The court will provide the remedy if there has been improper use of Article 356.
  • Article 356(3) places limitation on the powers of the president. He cannot dissolve the assembly until the proclamation is approved by parliament.
  • Article 356 applies only when there is breakdown of constitutional machinery, not of administrative machinery.
  • Article 356 must be used sparingly by the centre or else it can lead to destruction of the constitutional structure between the centre and the states.
  • In case the court finds the proclamation of President’s Rule to be invalid, it may restore the government that was removed. Just because parliament may have approved an invalid proclamation will not make it valid.
  • And finally, the court can stay the holding of fresh elections until the final decision is made on the validity of the proclamation as holding fresh elections when President’s Rule is under challenge would be a roundabout way of achieving the objects of the proclamation.

The courts have had to step in frequently to stop the misuse of the Article. In 1998, the Kalyan Singh government was dismissed on the report of the UP Governor Romesh Bhandari and Jagdambika Pal was invited to form the new government. Singh approached the Allahabad High Court which ordered the reinstatement of his government. When Pal approached the Supreme Court, it ordered a floor test which Kalyan Singh won.

In 2006 in Rameshwar Prasad and Ors vs Union of India, the dissolution of the Bihar assembly was found by the Supreme Court to be illegal.

The Supreme Court has struck down the imposition of president’s rule in Arunachal Pradesh on the basis of the governor’s wrong actions. However, a floor test looks inevitable and Tuki will have to prove his majority to stay in power.

As a guardian of our laws, the apex court’s role in Arunachal case was to ensure that correct procedures are followed while implementing Article 356. Who becomes the CM was not the court’s concern.

—By India Legal Bureau

Photos: UNI

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