33 MLAs give Indian legislative history its first “Tennis Court” moment, but leave behind a huge Constitutional question for the country
On finding themselves locked out of the Estates-General meeting by soldiers of King Louis XVI, members of the Third Estate in the Kingdom of France made a makeshift conference room in an indoor tennis court in Versailles on 20 June 1789. Through the centuries, the world has looked up to the pledge signed at this event as the Tennis Court Oath, a key event of the French Revolution.
Centuries later, on December 13, 1946, Jawaharlal Nehru evoked the “solemn spirit” of that Oath while addressing the Constituent Assembly, saying, “…we, too, whether we meet in this chamber or other chambers, or in the fields or in the market place, will go on meeting and continue our work till we have finished it.”
Last week, 33 legislators of the Arunachal Pradesh assembly seem to have taken a cue from that mechanism. On December 16, 2015, with the governor’s consent, they met at a community hall in Naharlagun (10 km from the capital city Itanagar) since the state government had used the police to seal the assembly premises. For the first time in the legislative history of India, a set of elected members met outside the assembly premises. First, they passed a no-confidence motion against Speaker Nabam Rebia. A day later, they met at a hotel to pass yet another no-confidence motion, this time against the state government, and to elect Kalikho Pul, a rebel Congress MLA, as the new ‘chief minister’.
Missing, however, was the “solemn spirit” of the Tennis Court Oath. Instead, an ugly faceoff was at play between these 33 legislators, comprised of 20 from the Congress, 11 from the Bharatiya Janata Party (BJP) and two independents, and the remaining members of the 60-member Assembly supporting the Nabam Tuki-led Congress government. The 33 legislators had the permission of Governor J.P. Rajkhowa to go ahead with the “assembly session” at the makeshift venues. Rajkhowa brought forward the assembly session from January 14 to December 16 in order to take up the issue of a no-confidence motion against the speaker without taking the state government into confidence, an established practice.
High drama surrounding this unconventional act triggered pandemonium in New Delhi, steered by the Opposition Congress in both houses of parliament. For two days in a row, parliament was adjourned. The Congress alleges that the governor acted at the behest of the Centre, in order to replace the Tuki government with a BJP one. Having used such gubernatorial positions many times to topple state governments over the years, the Congress should be well aware of the ruling NDA’s intention in first removing the speaker, and then bringing a no-confidence motion against the shaky Tuki Government. Even if a BJP government is not immediately on the cards for Arunachal Pradesh, it is likely that the state will be under President’s rule in the near future.
Politics aside, recent events in this northeastern state raise a set of constitutional questions. One is the validity of such an “assembly session”, the first ever in the country.
This act reminds constitutional expert Rajiv Dhawan of the Tennis Court Oath as well as Nehru’s evocation of it, but he is quick to add, “There is a system in place, unless it is an emergency situation like a bomb being found in the premises or the building is under construction, etc. I don’t see any emergency here. Such decisions by legislators (to remove the speaker and the government), therefore, have to be taken on the floor of the house.”
The Gauhati High Court took a similar view. On December 17, a single-judge bench put all decisions taken by the legislators at that “assembly session”, along with the governor’s decision to advance the session by a month, on hold until February 1, 2016.
Speaking to the media, Rajkhowa asserted that he “took every decision based on the Constitution.” Though he did not dwell on his “right” to allow an assembly session to take place in a makeshift location, he did point to Article 174 of the Constitution and argued that it “empowers a governor to summon and also prorogue the assembly, including cancelling a session or rescheduling it.” According to him, his decision to bring forward the session was in response to a notice sent by certain opposition members to the assembly secretary for a resolution to remove the speaker. The copy of the notice sent to him came “with a prayer to prepone” it. The governor acted because such a notice ideally has to be acted upon after a 14-day period.
Former Secretary General of Lok Sabha, PDT Achary says “It is very clear in the Constitution that the governor acts on the advice of the Council of Ministers, like the President does. He can’t act independently, like he had done in this case. Even if he wants to summon a session, advance or cancel it as per Article 174, it has to be done on the advice of the council of ministers.” As far as the 14-day period is concerned, Achary clarifies, “Such a notice can’t be acted upon before the completion of that period but there is no rule that says it has to be done as soon as the stipulated period gets over.” Meaning, it could have waited till January 14, the scheduled date of the coming assembly session. In his long years of service in the Lok Sabha, Achary never saw an assembly session in a hotel or a community centre. “No wonder the HC put a stay on the decisions,” he says.
Subhash Kashyap, also a former Lok Sabha Secretary General, points to Nehru’s 1946 address to justify the move. “The first Prime Minister of the country talked about such possibilities.”
Kashyap agrees that the governor certainly went against the normal practice of consulting the council of ministers but says his act was within the letter of the Constitution. “He is the executive head of the state. Together with the legislative assembly, he constitutes the state legislature. He doesn’t always need to take advice from the council of ministers. He has powers. As per Article 175, he can send messages to the house, which he did.”
Deputy Speaker T. Norbu Thongdok, who presided over the “assembly session” at the makeshift premises, justified the no-confidence motion against the Tuki government by referring to a Supreme Court decision. “The composite floor test was introduced by the SC in the case of Kalyan Singh v Jagadambika Pal in the Uttar Pradesh assembly for the first time in the country where members could participate in a no-confidence motion against the Government. The situation is the same in Arunachal Pradesh,” he told local media.
What Thongdok did not mention, however, was the question of whether the “Tennis Court” format the legislators adopted to bring in “the composite floor test” is Constitutionally valid.