The Congress's Masterstroke in Arunachal Was a Retrospective Vindication of the SC's Judgment

Had the rebel MLAs not rejoined the Congress, the Supreme Court's restoration of the state government to its December 15 form would have soon lost legitimacy.

The Congress’s unexpected decision to change its chief minister in Arunachal Pradesh on July 16 was a masterstroke that caught its main adversary, the BJP, unaware. But the Congress perhaps did not realise that its decision to welcome back all the rebels and reward one of them, Pema Khandu, with the chief ministership to ensure party unity, led to an unintended legal consequence. This decision restored the status quo ante in the state as on December 15, 2016, not only de jure, as directed by the Supreme Court on July 13, but also de facto.

The Supreme Court’s five-judge constitution bench, while delivering its judgment in the Nabam Rebia and Bamang Felix v the Deputy Speaker and others case, not only restored the status quo ante as on December 15, but also quashed all the subsequent steps and decisions taken by the state assembly pursuant to the governor’s December 9 message that brought the state assembly session forward by one month.

This had led to an anomaly. The judgment did not refer to the merger that took place on March 3, between the rebels’ faction comprising of 30 MLAs (who constituted two-thirds of the Congress’s strength of 45 in the assembly) with the People’s Party of Arunachal (PPA). This merger was protected by paragraph 4 of the tenth schedule of the constitution, dealing with the disqualification of MPs and MLAs on the ground of defection.

Fourteen of the 30 rebel MLAs were disqualified by the speaker, Nabam Rebia, on December 14 (under the tenth schedule) for voluntarily leaving the party by publicly identifying themselves with the opposition. The rebels also asked the governor to direct the then chief minister Nabam Tuki to seek a trust vote in the assembly.

The Gauhati high court, after initially staying these disqualifications, set them aside on March 30 on the ground that the speaker had exercised his powers under the tenth schedule, without regard to natural justice and fair play. The Supreme Court took note of the high court’s decision in its July 13 judgment, but ignored the rebels merging with the PPA on March 3.

This anomaly made the Supreme Court’s judgment restoring Tuki’s government, as it stood on December 15, appear all the more incongruous. It had the effect of rewarding someone who clearly did not have the numbers on his side. Thus the Supreme Court’s de jure restoration of the status quo ante stood the risk of losing its legitimacy sooner rather than later, with the legitimate merger of the rebels with the PPA threatening to undo it.

Had the 30 rebels stood together, in view of the tenth schedule’s protection of their merger with the PPA, the infirmities in the Supreme Court’s judgment would have been exposed. Fortunately for the apex court, the return of the rebels en bloc to the Congress served as the ex post facto justification for its direction.

The rebels might have returned to the Congress but they did not necessarily do so with a view to respect the Supreme Court’s July 13 judgment restoring the status quo ante. Indeed, reports suggest that the Congress played upon their insecurity resulting from its threat to use the tenth schedule to disqualify those who vote against the confidence motion. The threat appears to have succeeded, even though the rebels’ merger with the PPA on March 3 would have made them immune from disqualification for violating a party direction in the assembly.

Salient aspects of the judgment

The return of the rebel faction to the Congress, however, brings the curtains down on the seven-month-long political crisis, which saw the Supreme Court’s five-judge constitution bench deliberate on the role of the governor and the scope of his discretionary powers under the constitution.

The judgment, resulting from the month-long hearings in January-February, will remain a significant contribution to Indian democracy, even if the political denouement was a damp squib. Although the bench reserved its judgment on February 22 after the hearings were complete, it took almost five months to deliver its judgment, an inordinate delay that many felt did not give relief to the aggrieved party.

The bench appeared helpless when the Centre imposed President’s rule in the state during the hearing of the case on January 26. The court also seemed indifferent when on February 19, towards the close of the hearings, the government revoked President’s rule and paved the way for the installation of a puppet regime, with the support of defectors.

Yet, the judgment in Nabam Rebia and Bamang Felix v. the Deputy Speaker may be hailed because it defends the primacy of the elected government over the unilateral actions of the governor, taken without the aid and advice of the council of ministers. The judgment quashed the governor’s decision to advance the session of the state assembly, because it was taken without the aid and advice of the council of ministers by misreading his discretionary powers under the constitution.

The bench reached this conclusion by relying on constituent assembly debates as an aid to interpreting Article 163 (2), the literal meaning of which would confer unlimited discretion on the governor. The bench, however, held that the governor does not enjoy such unlimited discretion.

Having restored the government as it existed on December 15, the bench found no reason to examine the merits of the subsequent developments, including the imposition and restoration of President’s rule, the installation of a puppet regime, its success in securing the vote of confidence and the like. In the court’s view, these occurred because of the governor’s decision to bring forward the assembly session from January 14, 2016 to December 16, 2015.

The judgment rightly indicted the governor, Jyoti Prasad Rajkhowa, for pursuing a larger role than what is envisaged under the constitution.

Speaker’s role

But there is also a subtle indictment of the petitioner, Rebia, which many have missed. This lies in the fact that the speaker ought not to have disqualified the 14 Congress members on the ground of defection on December 14, when a resolution for his own removal from office was pending.

The bench interpreted Article 179 (c) of the constitution to mean that even MLAs who are liable to be disqualified have a right to vote on the resolution to remove the speaker from his office. Therefore, the speaker cannot prevent such members from voting on the resolution by disqualifying them beforehand.

Article 179 (c) reads as follows:

A member holding office as Speaker or Deputy Speaker of an Assembly may be removed from his office by a resolution of the Assembly passed by a majority of all the then [emphasis added] members of the Assembly.

The constitution bench held that the word ‘then’ as used in the Article clearly suggests that all those who were members of the house at the time when such a resolution is moved should have the right to vote on it. This, the bench suggested, restricts the speaker from going ahead with the disqualification proceedings when a resolution against his own continuance in office is pending.

There is no express provision in the tenth schedule of the constitution that places such a restriction on the speaker. But the Supreme Court has introduced this restriction through this judgment, which has led to further anomalies.

The first anomaly is that MLAs or MPs who are liable to be disqualified on the ground of defection can easily first give a notice for the removal of the speaker, before the speaker could consider an application for disqualifying them under the tenth schedule.  This would effectively disable the speaker from deciding on their disqualification.

The disqualified MLAs in Uttarakhand, who did not get relief from the Uttarakhand high court, are appealing in the Supreme Court and are likely to rely on this part Supreme Court’s decision on Arunachal Pradesh to set aside their disqualification.

Once they move a resolution to remove the speaker, house members who are liable to be disqualified on the grounds of defection would be free to vote in the assembly, including on the resolution to remove the speaker and on the confidence vote that may be moved by the chief minister.

The sequence of these two events, therefore, would assume significance. If the resolution to remove the speaker is taken up first, after 14 days of notice as required, and if the  resolution is defeated, the speaker will be in a position to decide the disqualification of house members first, before the vote  of confidence is considered by the assembly. This will ensure that those members who are liable to be disqualified do not have the right to vote on the confidence motion.

A member can be disqualified on satisfying either of the two grounds under the tenth schedule. The first ground can be invoked if he has voluntarily given up his membership of the political party on whose ticket he was elected to the house. The second ground will be triggered if he violates the party whip on voting in the house on an issue without obtaining prior permission from the party or if his violation of party direction is not condoned by the party within 15 days from the date of such voting or abstention.

Ironically, however, the vote cast by a member in violation of the direction by the party will have to be counted as a valid vote, even though the member who cast that vote is liable to be disqualified on the ground of defection.  Therefore, there is an element of compulsion on the ruling party and the presiding officer of the house to decide on the disqualification issue first, before the voting on the confidence vote is scheduled.

Courts, however, have looked with suspicion at the tendency of speakers to hasten disqualification proceedings – even at the cost of natural justice and fair play – in order to ensure that members who are liable to be disqualified do not vote on a confidence motion moved by the chief minister.

According priority to the disqualification proceedings over the voting on confidence motions may become necessary in order to achieve the objects of the tenth schedule, as the defectors could make a mockery of democracy by bringing down governments, even at the cost of losing their seats later.

Yet, the Supreme Court has not yet recognised that presiding officers must have the flexibility to schedule disqualification proceedings prior to the confidence vote, without the pressure to prove a majority on the floor of the house within a date arbitrarily chosen by the governor.