SC’s Message to BJP on Arunachal: Don’t Meddle With Constitution

In its Arunachal Pradesh order, SC took apart Centre for tampering with the Constitution, writes Mohan Parasaran.

Pema Khandu takes oath as Arunachal CM. (Photo: IANS)

The Damning Judgement

• Supreme Court judgement on Arunachal Pradesh has established that sovereignty does not lie in one democratic institution or wing of the government.
  
• Not political dominance but spirit of cooperative federalism preserves the balance between the Centre and the states.
  
• SC correctly held that the governor exceeded his constitutional limits by calling an early House session without the aid and advice of the state cabinet.
  
• Court was right to say that the governor’s powers cannot override that of the state executive and the legislature.
  
• Without the air and advice of the council of ministers, the governor had no jurisdiction or power to advance the assembly session.
  
• It is not in the governor’s domain to schedule the House agenda and he has no role with reference to the assembly’s functioning.
  
• SC judgement is a reminder to the high constitutional functionaries to respect constitutionalism.
  

The Supreme Court’s unanimous Constitution bench judgement revoking President’s Rule in Arunachal Pradesh and what followed is a timely reminder of two facets of constitutional democracy in our country:

• No single entity can claim superiority. Not even the Supreme Court. Because, despite the Supreme Court’s directions to restore status quo ante as it prevailed on 15 December 2015, it would have been futile had the Congress government not been able to prove its majority on the floor of the House.

The judgement and the subsequent events are testament to the fact that sovereignty does not lie in any one institution or in any one wing of the government. Rather, the power of governance is distributed in several organs and institutions – and that is a sine qua non for good governance.

• Only the spirit of “co-operative federalism” can preserve the balance between the Union and the states and promote the good of the people, not an attitude of dominance or superiority.

Challenge Before the Court

The crux of the challenge before the Supreme Court was whether the order and message of the Governor, without the aid and advice of the council of ministers and the chief minister, advancing the session of the Arunachal Pradesh assembly from 14 January 2016 to 16 December 2015, was unconstitutional or not. The SC held that the governor exceeded his constitutional limits by calling for an early session of the House without the aid and advice of the state cabinet.

The SC had to trace the roots of its jurisprudence as far back as the Shamsher Singh case (1974) in which a seven-judge bench held that, under the cabinet system, it is the satisfaction of the council of ministers on whose aid and advice the president or the governor functions, and not according to their own whims.

It was strongly urged by the respondents that where constitutional issues arise because of an unacceptable and constitutionally impermissible conduct of the council of ministers, or in case of a dispute related to the choice of the chief minister, or with reference to the resolution of the House, or on account of the democratic process being undermined, it was open to a governor to act on his own, without any aid and advice.

Arunachal Pradesh’s former Chief Minister Nabam Tuki and others at a Congress Legislative Party meeting in the state capital, Itanagar. (Photo: IANS)

Governor’s Limited Powers

After analysing the entire scheme of the Constitution qua the governor, the SC concluded that there is “no room for any doubt that the governor cannot be seen to have such powers and functions as would assign to him a dominating position, over the state executive and the state legislature.”

The court adopted the observations made in the Justice M M Punchhi Commission report to the effect that Article 163 does not give the governor a general discretionary power to act against or without the advice of the council of ministers.

The SC ultimately held that the governor just could not have summoned the House by his 9 December 2015 order, in his own discretion, by advancing the sixth session of the assembly from 14 January 2016 to 16 December 2015. This for the simple reason that the governor neither had the jurisdiction nor the power to do so, without the aid and advice of the council of ministers with the chief minister as the head.

Disgraced former Arunachal Pradesh Governor Jyoti Prasad Rajkhowa. (Photo: Twitter/Global Issues Web)

No Interference

The SC has laid down the litmus test, stating that as long as the democratic process in the assembly functions through a government, which has the support of the majority, there can be no interference by the governor. It is also not in the governor’s domain to schedule the agenda of the House. The governor has no role with reference to the functioning of the Assembly and he must keep away from all that goes on within the House.

Justice Mishra in his short but effective concurring opinion invoked the notions of “constitutional confidence” and “constitutional control” and concluded by stating that high constitutional functionary should act with restraint, discipline, and humility.

Principle of Cabinet Responsibility

In his concurring judgement, Justice Lokur unequivocally reiterated the view that the principle of cabinet responsibility is firmly entrenched in our constitutional democracy and that the Constitution does not accept any “parallel administration” or “dyarchy”. A fortiorari, the governor’s discretion under Article 163 of the Constitution is not all-pervasive but is circumscribed by the provisions of the Constitution, with a small ventilator available in some exceptional situations.

It must be noted that the SC judgement is a reminder to the high constitutional functionaries to respect constitutionalism and not betray the trust reposed in them by the people through the Constitution itself.

Arunachal Pradesh’s Congress Chief Minister Nabam Tuki submitting his resignation to Governor Tathagata Roy at the Itanagar Raj Bhavan. (Photo: ANI)

Gubernatorial Security of Tenure

However, if we truly expect governors to play a bipartisan role and not merely be puppets in the hands of the Centre, it would be appropriate to give security of tenure to the office of the governor as recommended by several committees, including the Rajamannar panel and the Sarkaria Commission report on Centre-State relations.

It should be a sobering reminder for all political parties, in their avaricious lust for power and control, that they cannot subvert India’s cherished federal structures and make a mockery of our high constitutional offices by reducing them to puppets in the hands of the Centre. For constitutional democracy to survive and for the voice of the “little man” to be heard, it is important that participatory democracy continues to play a vibrant role.

(The writer is a senior Supreme Court advocate and former Solicitor General of India)