Gauhati High Court
Pema Khandu & 10 Ors vs Nabam Rebia on 13 January, 2016
Equivalent citations: AIR 2016 (NOC) 519 (GAU.)
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
(1) I. A. No.2838 of 2015
In WP(C) No.7745 of 2015
1. SHRI PEMA KHANDU,
PO & PS- Itanagar, District - Papum Pare.
2. SHRI KUMAR WAII,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
3. SHRI JARKAR GAMLIN,
MLA Cottage No.5, E-Sector, PO & PS- Itanagar,
District - Papum Pare, PIN - 791111.
4. SHRI P.D. SONA,
MLA Cottage No.5, E-Sector, PO & PS- Itanagar,
District - Papum Pare, PIN - 791111.
5. SHRI MUTCHU MITHI,
Private Residence, Opposite SBI Bank, Tadar Tang
Marg, Bank Tinali, PO & PS- Itanagar, District -
Papum Pare, PIN - 791111.
6. SHRI KAMLUNG MOSSANG,
Bungalow No.4, Niti Vihar, PO & PS- Itanagar,
District - Papum Pare, PIN - 791111.
7. SHRI PHOSUM KHIMHUN,
Bungalow No.14, Niti Vihar, PO & PS- Itanagar,
District - Papum Pare, PIN - 791111.
8. SHRI W. LOWANGDONG,
Bungalow No.5, Niti Vihar, PO & PS- Itanagar,
District - Papum Pare, PIN - 791111.
Page 1 of 103
9. SHRI T. WANGHAM,
Bungalow No.7, Doordarsan Colony, PO & PS-
Itanagar, District - Papum Pare, PIN - 791111.
10. SHRI WANGKI LOWANG,
Bungalow No.9, Vovek Vihar, PO & PS- Itanagar,
District - Papum Pare, PIN - 791111.
11. SHRI KALIKHO PUL,
Quarter No.8, Type V, ESS Sector, PO & PS-
Itanagar, District - Papum Pare, PIN - 791111.
.............Applicants
- VERSUS -
SHRI NABAM REBIA, Speaker of the Arunachal
Pradesh Legislative Assembly, Naharlagun,
Arunachal Pradesh.
.............Respondent
(2) I. A. No.2839 of 2015
In WP(C) No.7745 of 2015
1. THE DEPUTY SPEAKER, Arunachal Pradesh Legislative Assembly, Naharlagun, Arunachal Pradesh.
2. SHRI T.N. THONGDOK, Quarter No.5, Type V, Mowb-II, PO & PS-
Itanagar, District - Papum Pare, PIN - 791111.
Page 2 of 103.............Applicant
- VERSUS -
SHRI NABAM REBIA, Speaker of the Arunachal Pradesh Legislative Assembly, Naharlagun, Arunachal Pradesh.
.............Respondent (3) I. A. No.2843 of 2015 In WP(C) No.7745 of 2015
1. DR. MOHESH CHAI, Member of Arunachal Pradesh Legislative Assembly, Tezu (ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
2. SRI JAPU DERU, Member of Arunachal Pradesh Legislative Assembly, Bomdila (ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
3. SRI TAGE TAKI, Member of Arunachal Pradesh Legislative Assembly, Ziro-Hapoli (ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
4. SRI TAMAR MURTEM, Member of Arunachal Pradesh Legislative Assembly, Raga (ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
5. SRI TUMKE BAGRA, Member of Arunachal Pradesh Legislative Assembly, Aalo West(ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111 Page 3 of 103
6. SRI TAMIYO TAGA, Member of Arunachal Pradesh Legislative Assembly, Rumgong(ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
7. SRI KENTO RINA, Member of Arunachal Pradesh Legislative Assembly, Nari-Koyu(ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
8. SRI KALING MOYONG, Member of Arunachal Pradesh Legislative Assembly, Pasighat East (ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
9. SRI OLOM PANYANG, Member of Arunachal Pradesh Legislative Assembly, Mariang-Geku(ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
10. SRI LAISAM SIMAI, Member of Arunachal Pradesh Legislative Assembly, Nampong(ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
11. SRI TESAM PONGTE, Member of Arunachal Pradesh Legislative Assembly, Changlang North (ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin - 791111
12. SRI TSERING TASHI, Member of Arunachal Pradesh Legislative Assembly, Tawang(ST) Legislative Assembly Constituency, Itanagar, Arunachal Pradesh, Pin -
791111
13. SRI PAKNGA BAGE, Member of Arunachal Pradesh Legislative Assembly, Dumporijo(ST) Legislative Assembly Page 4 of 103 Constituency, Itanagar, Arunachal Pradesh, Pin -
791111 .............Applicants
-Versus-
1. SHRI NABAM REBIA, Speaker of the Arunachal Pradesh Legislative Assembly, Naharlagun, Arunachal Pradesh.
(Writ Petitioner) ..........Opposite Party (4) I. A. No.30 of 2016 In WP(C) No. 7745 of 2015 The Governor of Arunachal Pradesh, Represented by the Deputy Secretary to the Governor of Arunachal Pradesh, Raj Bhawan, Itanagar, Dist.- Papumpare, Arunachal Pradesh.
..........Applicant
-Versus-
1. Shri Nabam Rebia, Speaker of the Arunachal Pradesh Legislative Assembly, Naharlagun, Arunachal Pradesh.
......Respondent.
2. The Deputy Speaker, Arunachal Pradesh Legislative Assembly, Naharlagun, Arunachal Pradesh & 14 others.
..........Proforma respondents.
Page 5 of 103 (5) I. A. No.2899 of 2015 In WP(C) No. 7998 of 20151. The Deputy Speaker, Arunachal Pradesh Legislative Assembly, Naharlagun, Arunachal Pradesh and another.
............Applicants
-Vs-
1. Bamang Felix, Member of Legislative Assembly, State of Arunachal Pradesh, son of Late Bamang Tasung, Resident of village- Langro, PO & PS- Sangram, District- Kurung Kumey, Arunachal Pradesh, PIN-791110 & another.
.....Respondents.
BEFORE THE HON'BLE MR. JUSTICE B.K. SHARMA.
For the writ petitioners : 1. Mr. S. Bansal, Sr. Adv.
2. Mr. V. Tankha, Sr. Adv.
3. Mrs. I.J. Singh, Sr. Adv,
4. Mr. Balbir Singh, Sr. Adv.
5. Mr. K.N. Choudhury, Sr. Adv.
6. Mr. Aswini Kumar, Sr. Adv.
7. Mr. J. Patowary, Adv.
For the applicant/respondents : 1. Mr. L.N.Rao, Sr. Adv.
Page 6 of 1032. Mr. D.K. Mishra, Sr. Adv.
3. Mr. S.S. Dey, Sr. Adv.
4. Mr. P.K. Tiwari, Sr. Adv.
5. Mr. G. Shivshankar, Adv.
6. Mr. M. Nath, Adv.
7. Mr. K. Sexana, Adv.
For the Governor of A.P. : Mr. Jain, Sr. Adv.
Mr. B.D. Goswami, Adv.
For the State of A.P. : Mr. M.L. Verma, Sr. Adv.
Mr. K. Ete, AG, A.P.
Mr. Nabam, Sr. Govt. Adv, A.P.
Date of hearing : 04/01/2016, 05/01/2016, 06/01/2016,
07/01/2016 and 08/01/2016.
Dates of judgement : 13/01/2016
JUDGEMENT AND ORDER (CAV)
[1] The basic issue involved in these two writ petitions is as to whether the
Governor of a State is to act only with the aid and advice of the council of Ministers in all circumstances or the Governor is empowered being the custodian of an executive and other powers under various Articles of the Constitution of India is entitled to exercise independent/discretionary powers. The other issues including the right of the Governor to address and send messages to the Legislative Assembly was legally permissible in the fact situation involved in this case. The concerned Articles of the Page 7 of 103 Constitution of India in this regard are Article 174 and Article 175. The other issues involved are incidental to the above issues.
[2] The background facts involved in this proceeding have seen set out in the interim order passed on 17.12.2015, which reads as follows:
"BACK DROP
3. The party w ise com position of the Arunachal Pradesh State legislature in the 60 m em ber House is Congress-47, BJP-11 and I ndependent-2.
4. The sitting of the Sixth Sessions of the State Assem bly w as notified for 14.1.2016 by the Governor on 3.11.2015 and at that stage, the 16 Congress M LAs gave notice for rem oval of the Deputy Speaker. N ext the 11 BJP M LAs issued notice for rem oval of the Speaker and this m ove against the petitioner w as supported by 2 I ndependent M LAs.
5. The 13 M LAs in the opposition requested the Governor for pre-poning the assem bly session for considering the Speaker's rem oval.
6. The request of the opposition M LAs w as acted upon by the Governor and on 9.12.2015, the Governor issued the notification for pre-scheduling the assem bly session to 16th Decem ber, 2015 from 14th January, 2016, to facilitate the House to consider rem oval of the speaker. Sim ultaneously a second notification w as issued on the sam e day w hereby the Governor issued a m essage fixing the resolution of the Speaker's rem oval, as the first agenda item in the pre-poned assem bly session.
7. At that stage the Congress party w hip applied for disqualification of respondent N os. 2 to 15 under the anti-defection Rules and the State Cabinet passed a resolution on 14.12.2015 to the effect that the Governor's decision to prepone the assem bly session is contrary to constitutional provisions and the Rules of Procedure. On the sam e day, the Speaker also w rote to the Governor for allow ing the House to function as per its originally notified schedule.
8. On 15th Decem ber, 2015, the respondent N os. 2-15 w ere declared to be disqualified and consequently those 16 seats w ere notified to be vacant. But the Deputy Speaker issued an order quashing the Speaker's order, on disqualification of the 16 M LAs.
9. the preponed session of the assem bly w as held at a com m unity hall (not in the assem bly house) w here Deputy Speaker conducted the proceeding and as per the first agenda item notified by the Governor, a resolution for rem oval of the Speaker w as adopted and the Speaker's office w as declared to be vacant.
10. The opposition group then proposed for a test of strength on the floor of the House and the Deputy Speaker scheduled the m otion for consideration of the House for today ie. 17th Decem ber, 2015 and the assem bly is scheduled to consider w hether the Chief M inister N abam Tuki w as enjoying the m ajority support or Page 8 of 103 w hether the vote of confidence of the House is in favour of the respondent N os. 3 Kalikho Pul."
[3] The basic thrust of the petitioners' arguments set out in both the writ petitions filed by the Speaker of the Arunachal Pradesh Legislative Assembly [WP(C) No. 7745/2015) and two Members of the Legislative Assembly [WP(C) No. 7998/2015) respectively is that the Governor exceeded in his jurisdiction and power to prepone the State Assembly session taking recourse to the provisions of Article 174 of the Constitution of India and so also in issuing the messages under Article 175(2) of the Constitution of India, on the following grounds:
(i) There is no provision in the Constitution of India conferring exclusive and independent power on the Governor to prepone State Assembly's session
(ii) Article 174 (1) of the Constitution of India though confers power to summon the State Assembly from time to time, the same is required to be exercised with aid and advice of the Chief Minister (and his council of Minister). This position of law is evident from Rule 3 of the Conduct of Business Rules, which in no uncertain terms envisage that the Chief Minister in consultation with the Speaker, fix date of commencement and the duration of the State Assembly's session, advice the Governor to issue summons under Article 174 (1)of the Constitution of India.
(iii) Governor summons a house not of his own accord but only when advised to do so by the Council of Ministers. It is the Council of Ministers, which provides business for a session of the legislature. Thus, it follows that for the Governor to act otherwise than such advice in the matter of summoning a house would be without purpose.
(iv) Article 163(1) of the Constitution expressly requires the Governor to act on aid and advice of the Chief Minister and the Council of Minister except where the Governor is required by or under the Constitution to act in his discretion. As stated above, there is no provision under the Constitution of India that exclusively and Page 9 of 103 independently empowers the Governor to summon the State Assembly.
Further, summoning of the State Assembly (particularly to prepone the State Assembly) under Article 174 (1) of the Constitution of India also does not fall within the discretion of the Governor.
(v) In PU Myllai Hlychho and Ors v. State of Mizoram, (2005) 2 SCC 92, the five judges constitutional Bench of the Apex Court having categorically laid down that under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of the Council of Ministers. Whenever the Constitution requires the satisfaction of the Governor for the exercise of any power or function, the satisfaction required by the Constitution is not personal satisfaction of the Governor but the satisfaction in the constitutional sense under the Cabinet system of Government. The Governor exercises functions conferred on him by or under the Constitution with the aid and advice of the Council of Ministers.
(vi) In Shamsher Singh v. State of Punjab and Anr., (1974) 2 SCC 831, a seven judges constitutional bench held that our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British model both for the Union and the States. Under this system, the President is the constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers
(vii) The impugned order dated 9.12.2015 having been issued by the Governor at the request of 13 MLAs without consulting the Chief Minister and the Council of Ministers as required under Article 174(1) read with Article 163(1) of the Constitution and Rule 3 of the Conduct of Business Rules, the same is unconstitutional and bad in law.
Page 10 of 103(viii) Although Article 175 (2) of the Constitution of India empowers the Governor to send messages to the State Assembly, but he was debarred from doing so in respect of a resolution pending before the house. In this connection, the petitioners have placed reliance on the decision of the Apex Court in Union of India & Ors. V. Valluri Basavaiah Chowdhary and Ors reported in (1979) 3 SCC 324.
(ix) The Business Advisory Committee of the State Assembly ("Business Advisory Committee") has been constituted under Article Rule 244 of the Conduct of Business Rules. This Business Advisory Committee under Rule 245 of the Conduct of Business Rules is entrusted with the responsibility to fix the business and agenda(s) of the State Assembly. The resolution for removal of Speaker was moved on 19.11.2015 i.e. after conclusion of the State Assembly. Thus, no occasion for Business Advisory Committee arose at that time to fix schedule/time for taking up the resolution in State Assembly. The Governor before about a month from the originally scheduled date of State Assembly's session summoned the State Assembly. There is nothing in the Governor's Message or Order dated 9.12.2015 that indicates that the Business Advisory Committee or the Speaker has refused to take up the said resolution.
(x) Messages under Article 175 (2) of the Constitution of India cannot be issued with respect to a resolution, issuance of the Message directly impinged upon the functions of the Business Advisory Committee. This become all the more important when there is no recordial in the Order or the Message that there was any reluctance on part of the Business Advisory Committee or the Speaker to take up the resolution in State Assembly sixth session, as originally scheduled.
(xi) Resolution for removal of Deputy Speaker was moved before the resolution of the Speaker was moved. However, the Governor by issuing the Message has given priority to the resolution for removal of the Page 11 of 103 Speaker without making any reference to the other notice of resolution. This puts a serious question mark on proprietary and bonafide of the governor's Message.
(xii) The respondent Nos. 2 to 15 have been acting against the interest of INC with support (both financially and logistically) of and at the behest of BJP leadership in New Delhi and Arunachal Pradesh. These respondents along with other members of BJP had planned to unconstitutionally topple the present INC government in Arunachal Pradesh. An FIR was lodged against the respondent No. 13 and others making certain serious allegations including the allegation of illegal gratification.
(xiii) The respondent Nos. 2 top 15, to obviate the effect of Article 191 (2) read with Schedule 10 of the Constitution of India (i.e. disqualification from membership of the State Assembly) were wanting to remove the petitioner from office of the Speaker of the State Assembly in conspiracy with BJP and RSS leaders. This nefarious design of the respondent Nos. 2 to 15 is now evident from the Notification issued by the Deputy Speaker.
(xiv) It was in pursuance of their aforesaid conspiracy, the respondent Nos. 2 to 15 managed to secure an the order and Message dated 9.12.2015 from the Governor preponing the State Assembly's session from 14.1.2016 to 16.12.2015. and inter alia fixing 'resolution for removal of speaker' as the first item on the agenda of the house.
(xv) The Deputy Speaker himself having stood disqualified,, he along with other disqualified MLAs could not have participated in any proceedings of the Assembly. The Deputy Speaker by passing the order dated 15.12.2015 became the judge of his own cause. He also could not have held the session of the State Assembly outside Vidhan Sabha unauthoisedly.
Page 12 of 103(xvi) Under the scheme of the Constitution of India, the Deputy Speaker does not have any jurisdiction or power to sit over in appeal and quash decisions of the Speaker. The aforesaid 14 Congress MLAs were disqualified since they have voluntarily given up their membership as interpreted by the Supreme Court in several judgments. This disqualification was strictly in terms of Article 191 (2) read with Schedule 10 of the Constitution of India, para 2 (1) (a), 6(1) & (2) and Rule 3(7) and 6 of the Members of Arunachal Pradesh Legislative Assembly (Disqualification on ground of defection) Rules, 1987. (xvii) Constitution of India does not vest any power on the Deputy Speaker to hold session of the State Assembly at such place as he deems fit. The place for holding session of the State Assembly can only be the house. In terms of Article 174 (1) read with Article 163 (1) of the Constitution of India and Rule 3 of the Conduct of Business Rules, the place of holding State Assembly session can only be changed on the advice of the Chief Minister (and the Council of Ministers) and not at whims and fancies of the Deputy Speaker.
(xviii) In the present case holding of State Assembly at Tetchi Takar Community Hall, G Sector instead of the House, as provided in notification dated 9.12.2015 (even if we assume Governor's order to be a valid order for the sake of argument) is unconstitutional and illegal. This is contrary to Article 174 (1) read with Article 163 (1) of the Constitution of India and Rule 3 of the Conduct of Business Rules since as in the present case neither the Chief Minister was consulted for varying the venue nor Governor has passed any Order in this regard. (xix) In view of the aforesaid the Notification dated 15.12.2015 issued by the Deputy Speaker on the basis of purported resolution passed in sessions of the State Assembly held outside the precincts of the House is illegal and non-est in the eyes of law.
Page 13 of 103(xx) The Notification and Resolution dated 16.12.2015 for removal of the petitioner from the office of the Speaker is bad in law and non-est. It is submitted that the sitting in which the said resolution was passed as state above was unconstitutionally called. This, all proceedings and consequences thereof are also unconstitutional. No resolution passed in such sitting and no notification issued on the basis of such resolution have any force of law.
(xxi) The Deputy Speaker himself stood disqualified by the Disqualification Order. Thus, the Deputy Speaker along with other disqualified MLAs of INC could not have participated in any proceedings of the State Assembly. It is submitted that upon disqualification any resolution passed in the purported session of the State Assembly is not a resolution passed in the purported session of the State Assembly is not a resolution, having any legal sanctity.
(xxii) The vote in the instant case has been procured by using unfair means including use of money power and as a result entire voting process allegedly undertaken by the Deputy Speaker becomes vitiated and untenable in law.
[4] With the above grounds, the writ petition being WP(C) No. 7745/2015 was moved on 17.2.2015 and the submission made on behalf of the petitioners and so also the respondents No. 4 and 5 were recorded thus.
"PETITIONER 'S CASE
11. The petitioner refers to the contour of the pow er of the Governor under Article 174 of the Constitution of I ndia to project that this pow er as a Constitutional head m ust be exercised for perm itted purpose and in the m anner indicated and the sam e can't be m isutilized to underm ine the position of the other constitutional functionaries of the State.
12. M r. Sibal subm its that the pow er conferred on the Governor to send M essage to the House under Article 175(2) of the Constitution of I ndia can't be invoked to set out the Assem bly Agenda and the learned Senior Counsel contends that the Governor has acted beyond his perm itted jurisdiction.Page 14 of 103
13. Referring to the constitutional position of the Governor, w ho is expected to act on the aid and advice of the Council of M inisters, M r. K. Sibal points out that the Governor acted on the basis of the notice given by the leader of Opposition and this under the constitutional param eters, is legally im perm issible.
14. The Senior Counsel points out that the notice for rem oval of the Deputy Speaker w as issued by 16 Congress M LAs on 6.11.2015 and this w as follow ed by the opposition group's notice of 19.11.2015 for rem oval of the Speaker by 13 M LAs and yet the Governor by stipulating the Agenda in the House, prioritised the discussion on the second notice against the Speaker, to underm ine the business procedure of the House.
15. Placing reliance on the Rules of procedure and conduct of business adopted by the Arunachal Pradesh Legislative Assem bly, M r. Sibal subm its that the Assem bly is to be sum m oned by the Governor on the advice of the Chief M inister and in the present case, the Assem bly w as scheduled for 14.1.2016 and yet, w ithout the requisite advice of the Chief M inister, the Governor pre-poned the Assem bly Session, by acting on the request of the M em bers of the Opposition.
R ESPONDENTS' SUBM ISSION
16. Representing the respondents 4 & 5, w ho w ere disqualified by the Speaker but restored to their position by the Deputy Speaker, M r. A.M . Buzarbaruah, the learned Senior Counsel subm its that it is not obligatory for the Governor in all situation to act on the aid and advice of the Council of M inisters and exceptions have been curved out in the constitutional schem e and the judgm ent of the Apex Court, to allow the Governor to act at his discretion in certain exigencies to m eet em ergent constitutional situation.
17. The respondents contend that since the Speaker has been rem oved from his office through the N otification dated 16.12.2015, this Court should not pass any interim order w hich w ill am ount to turning the clock back for the already concluded events."
[5] On the basis of the above, this Court recorded the following prima facie observation towards issuance of notice to the other respondents and passing an interim order keeping in abeyance all the impugned decisions.
"COURT'S PRI M A FACI E OBSERVATI ON
18. The subm issions m ade by the learned counsel have received m y earnest consideration.
19. The Governor w hile sum m oning the House of the State Legislature, is required to perform his duty w ith the aid and advice of the Council of M inister and the Chief M inister in consultation w ith the Speaker is m ade com petent to advice the Governor, for sum m oning the Assem bly, under the Rules of Procedure and Conduct of Business of the Arunachal Pradesh Legislative Assem bly. I n discharging this function, the Governor acts as a constitutional head and therefore his decision to pre-pone the assem bly session w ithout advice of the Chief M inister and prim arily Page 15 of 103 on requisition m ade by the opposition M LAs, taints the Governor's order and renders it unw orthy of the State's constitutional head.
20. The pow er of the Governor to send m essage to the House is w ith respect to a pending bill in the House and this pow er under Article 175(2), can't be utilized to send m essage on a pending resolution for rem oval of the speaker and hence this appears to be an act of exceeding the jurisdiction.
21. M oreover the resolution for rem oval of the Deputy Speaker w as m oved prior to the sim ilar resolution for the Speaker and yet the Governor has fixed the later resolution as the first agenda. This suggest a non bonafide intervention by the constitutional head in the context of his decision to advance by a m onth the assem bly session only in order to take up as a first agenda, the resolution for rem oval of the speaker in a session to be presided by the Deputy Speaker, w ho him self is facing a resolution for rem oval, from an earlier date.
22. I n the constitutional schem e of dem ocratic I ndia, the President or the Governor has a w ell-defined role and w hen the Governor acts on his ow n discretion in certain exceptional situation, his action m ust be for furtherance of the constitutional goals. I n our legal fram ew ork the defacto authority of the State vest on the elected Governm ent and not on the constitutional head.
23. The disturbing developm ents in the State of Arunachal Pradesh noticed from the various steps taken since N ovem ber 2015 indicates the tussle for pow er by opposing group and it is clear that the Speaker and the Deputy Speaker of the Assem bly are heading the opposite cam ps. Understandably the action of the M LAs are m otivated by political exigencies and a m anifestation of this can be seen from the FI R dated 20.12.2015. I n such situation, the Governor as the constitutional head, is expected to discharge his role w ith dispassion and w ithin the constitutional fram ew ork. But the im pugned steps taken by the State's Governor w hich facilitated the political battle to m ove in certain direction in the tussle for pow er, reflects the non neutral role of the constitutional head and this is underm ining the dem ocratic process.
24. Therefore let N otice returnable on 1.2.2016 be issued. Steps be taken by the petitioner to serve notice on the respondents, w ho are unrepresented today. The petitioner is perm itted to im plead additional party as m ay be advised and in that event, notice m ay be issued to them as w ell.
25. Taking all the above factors into account, m eanw hile, the im pugned decision(s) are ordered to be kept in abeyance until the case is considered next. List on 1.2.2016."
[6] It will be appropriate at this stage to refer to the final prayers made in the writ petition and so also the interim prayer.
"FI N AL PRAYER I t is therefore m ost respectfully prayed that this Hon'ble Court m ay be pleased to:Page 16 of 103
(a) Pass a w rit of Certiorari or any other such other or further w rit(s) quashing:-
i. Governor's Order dated 09.12.2015 preponing
Session of sixth Arunachal Pradesh Legislative
Assem bly from 14 th January 2016 to 16 th Decem ber
2015.
ii. Governor's m essage dated 09.12.2015 fixing
'Resolution for rem oval of Speaker's as first item of the business at the purported first sitting of sixth session of the Arunachal Pradesh Legislative Assem bly.
iii. Deputy Speaker's order dated 15.12.2015 quashing disqualification of respondent N os. 3 to 15 m ade by the Speaker under Article 191 (2) read w ith Para 2 (1) (a) and 6 (1) & (2) and Rule 3 (7) and Rule 6 of the M em bers of Arunachal Pradesh Legislative Assem bly (Disqualification) on ground of defection) Rules, 1987.
iv. N otification and resolution dated 16.12.2015 rem oving the petitioner from the office of the Speaker of the Legislative Assem bly of the Arunachal Pradesh.
(b) Declare holing sitting(s) of the purported sixth session of the Arunachal Pradesh Legislative Assem bly outside the House to be illegal and unconstitutional; and Pass any other of further order(s) as this Hon'ble Court in the facts and circum stances of the present case deem s fit and proper in the interest of justice.
I N TERI M P RAYERS I t is therefore m ost respectfully prayed that this Hon'ble Court m ay be pleased to:
(a) Pass an ad-interim / interim order restraining the respondent N o. 1 from holding any sitting of the Arunachal Pradesh Legislative Assem bly pursuant to the Governor's Order and M essage dated 09.12.2015; and
(b) Pass any other of further order9s) as this Hon'ble Court in the facts and circum stances of the present case deem s fit and proper."
[7] The original writ petition being WP(C) No. 7745/2015 as it stood at the time of filing of the writ petition was against 14 MLAs including the Deputy Speaker, who was included as party respondent both in his official capacity and personal capacity. However, later on, on the basis of the orders passed on 21.12.2015 in I.A. No. 2823/2015 and I.A. No. 2822/2015, the respondents No. 16 to 25 numbering 20 were added as party respondents. They are all members of Legislative Assembly in 60 members' house. They were so impleaded on the basis of their application referred to Page 17 of 103 above. Further, the Governor of Arunachal Pradesh was also added as party respondent NO. 36 on the basis of the application being I.A. No. 29/2016 filed on his behalf. As will be evident from the application in I.A. No. 29/2016, the Governor got himself impleaded as party respondent primarily because of the purported adverse comments recorded against him in the interim order. It has also been contended in the said application that the petitioners having attributed biasness in the action of the Governor in preponing the session of the Arunachal Pradesh Legislative Assembly and there being deliberate concealment of fact in the writ petition, for the efficacious adjudication of the matter, the applicant, i.e. Governor was a necessary party.
[8] So far as the second writ petition being WP(C) No. 7998/2015 is concerned, the same has been filed by two MLAs challenging the orders referred to above on the said ground. In the said writ petition, apart from 14 MLAs who were initially party respondents in the first writ petition including the Deputy Speaker, both in his official and individual capacity, the petitioners have also added the Governor and the State of Arunachal Pradesh as party respondents. The writ petition was entertained on 21.12.2015 and while issuing notice, no interim order was passed. However, the writ petition was directed to be placed along with the first writ petition being WP(C) No. 7745/2015.
[9] The I.A. No. 2838/2015 has been filed by 11 MLAs, who are respondents No. 1, 2, 3 and 6 to 15 in WP(C) No. 7745/2015 and who were not heard when the interim order was passed. As noted above, the interim order was passed upon hearing the learned counsel for the petitioner and the learned counsel representing the respondents No. 4 and 5. The I.A. No. 2839/2015 has been filed by the Deputy Speaker, who is party respondent No. 1/15 in WP(C) No. 7745/2015. The I.A. No. 2843/2015 has been filed by 13 MLAs who got themselves impleaded by filing I.A. No. 2823/2015 (vide order dated 21.12.2015). They have been impleaded as respondents No. 23 to 35.
Page 18 of 103[10] In all the above IAs, the respondents have prayed for dismissal of the writ petition being WP(C) No. 7745/2015 alleging want of maintainability and also for recalling/modification/alteration/vacation of the interim order dated 17.12.2015.
[11] In I.A. No, 30/2016 has been filed on behalf of the Governor so as to bring on record his version of the entire episode with the prayer to expunge the purported adverse comments appearing in the interim order dated 17.12.2015. I.A. No. 2899/2015 has been filed in other writ petition being WP(C) No. 7998/2015 challenging the very maintainability of the writ petition. The I.A. has been filed by the Deputy Speaker in his official as well as personal capacity.
Pleas of the respondents in IA No. 2838/2015, IA No. 2839/2015 and 2843/2015 in WP(C) No. 7745/2015 and so also in I.A. No. 2998/2015 filed in WP(C) No. 7998/2015.
[12] In all the above I.As., the respondents, both original and newly impleaded, which comprised of 34 MLAs, they have pleaded and urged the following facts and grounds :-
i. In the State of Arunachal Pradesh, the election was held in April, 2014 and the current Party wise composition of the State Legislature is - Indian National Congress- 47; Bharatiya Janata Party-11 and Independent-2, (total 60).
ii. On 31.10.2015, 5th Session of the State Assembly got concluded.
Consequently, in terms of the mandate of Article 174(1) of the Constitution, the Governor on 03.11.2015 issued an order summoning the 6th Legislative Assembly of Arunachal Pradesh to meet for its 6th Session at 10:00 A.M. on 14th January, 2016 in the Legislative Assembly Chamber at Naharlagun.Page 19 of 103
iii. Subsequent to the issue of the aforementioned order by the Governor, a notice of resolution for removal of Shri Nabam Rebia from the Office of the Speaker of the Arunachal Pradesh Legislative Assembly was given to the Secretary, Legislative Assembly on 19.11.2015 with a copy endorsed to the Governor. The aforementioned notice was given by Shri Tamiyo Taga (BJP), the leader of opposition in the Assembly along with 10(ten) other members of the BJP and supported by 2(two) other independents (total 13 MLAs].
iv. Subsequent to the tabling of the resolution dated 19.11.2015 for removal of Shri Nabam Rebia from the Office of Speaker, some of the MLAs of the Congress Party including the Speaker, Shri Nabam Rebia, started talking about issue of notice by certain MLAs of Congress Party for removal of the Deputy Speaker. On hearing reports about a resolution for removal of the Deputy Speaker having been received by the Secretary/Speaker of the Legislative Assembly, the Governor's Secretariat addressed a letter to the Secretary of the Assembly and also to the Speaker with a request to send the Governor a copy of such notice, if any. However, the Governor Secretariat's communication was not responded to.
v. Since the Governor had only received the notice of resolution for removal of Shri Nabam Rebia from the Office of the Speaker dated 19.11.2015, in terms of the mandate of first proviso to Article 179 of the Constitution of India, the Governor complying with the notice period of 14(fourteen) days, issued an order dated 09.12.2015 modifying the summons already issued and instead summoning the 6th Arunachal Pradesh Legislative Assembly on 16.12.2015 in exercise of the powers under Article Page 20 of 103 174(1) of the Constitution of India. Thus, in terms of the modified order of the Governor, the Arunachal Pradesh Legislative Assembly was summoned to meet on 16.12.2015 at 10:00 AM at the Legislative Assembly Chamber at Naharlagun. vi. On the same date, i.e. on 09.12.2015, the Governor issued a message under Article 175(2) of the Constitution of India, fixing the resolution for removal of the Speaker as first item on agenda of the State Assembly at its first sitting of its 6th Session. It was clarified in the message that as the resolution for removal of the Speaker shall be the first item of business at the first sitting of the 6th Session of the 6th Arunachal Pradesh Legislative Assembly, the Deputy Speaker shall preside over the House from the first moment of the first sitting of the House in accordance with the provisions of Article 181(1) of the Constitution of India. vii. Curiously on 09/10.12.2015, a politically motivated FIR was also filed against the applicant No.11 making various allegations against him to the effect that he is trying to topple the Government of Shri Nabam Tuki through various illegal means. A case was also registered against the aforementioned applicants under Section 120(B) of the Indian penal Code read with Section 7 of the Prevention of Corruption Act. From the contents of the FIR, it is evident that the same was manufactured or extraneous political considerations. Be that as it may, the applicant No.11 is taking recourse to appropriate legal remedy against the same. viii. On 14.12.2015, the State Cabinet passed a resolution to the effect that the Governor's decision to prepone the Assembly Session is contrary to the Constitutional provisions and the rules of procedures and conduct of business of the Arunachal Pradesh Legislative Assembly. On the same day, the Speaker also wrote Page 21 of 103 to the Governor for allowing the House to function as per its originally notified schedule.
ix. At this stage, the Congress Party Whip applied for disqualification of the applicants under Article 191(2) read with Paragraph 2(1)(a) and (6)(1) & (2), Rule 3(7) and Rule 6 of the Members of Arunachal Pradesh Legislative Assembly (Disqualification on Ground of Defection) Rules, 1987. On 15.12.2015, i.e. less than twenty-four hours before holding of the Assembly Session on 16.12.2015, the applicants were declared disqualified and their seats were notified to be vacant. Evidently this was done to protect the speaker from imminent removal. The disqualification of the applicants was ex facie illegal as no procedure under the Rules of 1987 was followed for disqualifying them and no opportunity of hearing was afforded to them. The disqualification of the applicants was an act of extreme hurry with an oblique motive.
x. Though the Speaker was constitutionally obliged to issue the necessary Bulletin Part-II notifying the resolution and also the list of business for the 16.12.2015 including the resolution for transaction of the House but the same was not done in total defiance of the order of the Governor and the message. This was obviously done by the Speaker to save himself from facing the resolution for his removal. Since the Deputy Speaker was asked by the Governor to conduct the proceeding of the House on the resolution for removal of the Speaker in accordance with Article 181 of the Constitution of India read with relevant rules or procedure of the House, he prepared the Bulletin Part-II and list of business for 16.12.2015, thereby conforming to the Page 22 of 103 Constitution and the mandate issued by the Governor of Arunachal Pradesh.
xi. In view of the fact that the Speaker had disqualified the 14(fourteen) applicants, including the Deputy Speaker, by 2(two) notifications of even number, viz. No.LA/LEG-37/2015 dated 15.12.2015, only a day before the first sitting of the 6th Session, admittedly to escape the consequences of the resolution for his removal slated for transaction on 16.12.2015, the Deputy Speaker had no alternative but to take note of such actions of the Speaker. It was noted that the Speaker had disqualified the applicants without following basic procedure of law in regard to -
(i) receipt of petition for disqualification; (ii) forwarding the petition for comments of the respondents; and (iii) hearing the respondents and that there was flagrant violations of the provisions of Arunachal Pradesh Legislative Assembly (Disqualification on Point of Defection), and also in view of the fact that the Speaker by his such action had tried to obstruct the order of the Governor to hold the Session of the Assembly to consider the resolution for removal of the Speaker, the Deputy Speaker passed an order holding that all the applicants including the Deputy Speaker would continue to be Members of the 6th Arunachal Pradesh Legislative Assembly treating the order of the Speaker disqualifying the 14(fourteen) applicants as ab-intio void.
xii. On 16.12.2015, total 33(thirty-three) MLAs including the Deputy Speaker, which included 11(eleven) BJP MLAs and 2(two) independents, went to the State Legislative Assembly at Naharlagun to attend the Session of the Assembly as per the order of the Governor, however, they found the gates of the Page 23 of 103 Assembly locked. It was learnt that an Executive Magistrate on an order from the State Administration had locked the Assembly Secretariat, thereby preventing Members entry into the Assembly premises. There were chaotic scene outside the Assembly Secretariat and all the efforts were made by the State Administration to ensure that the 33(thirty-three) MLAs who were willing to attend the Session are not allowed to enter the Legislative Assembly. After waiting for two hours outside the Assembly Secretariat, these 33(thirty-three) MLAs including the present applicants, decided to contact the Raj Bhawan so that the Governor's mandate could be honoured in terms of the order dated 09.12.2015. The chaotic scenes in the areas adjacent to the Assembly Secretariat at Naharlagun were widely covered by the Media and all the dailies of this region.
Applicants also craved leave of the Court to produce the copies of the newspapers about the disturbances in the areas adjacent to the Assembly Secretariat at Naharlagun, Arunachal Pradesh and other related events.
xiii. The Deputy Speaker in his letters dated 16.12.2015 wrote to the Governor about the locking of the Assembly Premises and the act of defiance of the Civil and Police Administration and urged His Excellency to intervene by invoking his special powers so that the Assembly premises could be open and safe passage of all MLAs can be ensured to carry out Governor's order of 09.12.2015. The aforementioned letter was accompanied by joint memorandum of 34(thirty-four) MLAs who were facing hostile situation in the areas around the Assembly premises and it was suggested that the Assembly Session may be held at Techi Takar Memorial Community Hall, G-Sector, Naharlagun.
Page 24 of 103xiv. Under these extra-ordinary circumstances, the Governor gave the go ahead for conducting the Sessions at 2:00 PM at the Naharlagun G-Sectors Techi Takar Community Hall, which is about a kilometer from the Assembly Secretariat. This was done to protect democracy and the Constitution. Accordingly, by letter No.APLA/DS/6S/2015 dated 16.12.2015, the Deputy Speaker informed the Director, Department of Information & Public Relations, Government of Arunachal Pradesh that the first sitting of the 6th Arunachal Pradesh Legislative Assembly shall be held from 2:00 PM onwards at Techi Takar Community Hall, G-Sector, Naharlagun. This information was also communicated to all the members of electronic, print and other media. The Deputy Speaker also issued an order dated 16.12.2015 about the holding of the Session in accordance with the order of the Governor dated 09.12.2015 and conduct of the proceedings as per the message of the Governor dated 09.12.2015.
xv. On 16.12.2015 at the Techi Takar Community Hall at G-Sector, Naharlagun, the Session of the House was held and the motion for removal of the Speaker was passed with 33(thirty-three) of the 60(sixty) Member House voting in favour of the resolution for removal of the Speaker. Consequently, the notification dated 16.12.2015 was issued by the Deputy Speaker functioning as Speaker, removing Shri Nabam Rebia from the Office of the Speaker and declaring that the Office of the Speaker of the Arunachal Pradesh Legislative Assembly has fallen vacant with effect from the said time and date.
xvi. On 16.12.2015, a notice of composite floor test was also admitted. This motion was included in the list of business of the sitting of the State of Assembly on 17.12.2015. As per the list of Page 25 of 103 business issued by the Deputy Speaker (functioning as Speaker), the following motions were to be considered on 17.12.2015:-
(a) Want of confidence in the Council of Minister headed by Shri Nabam Tuki; and
(b) Confidence on Shri Kalikho Pul (applicant No.11) to lead a new Council of Ministers.
xvii. The Deputy Speaker, Shri T.N. Thongdok, by his letter dated 16.12.2015 to the Chief Minister, Arunachal Pradesh informed him about the particulars of business for the Session on 17.12.2015. For the said purpose, necessary Bulletin Part-II and list of business for 17.12.2015 was enclosed. It was observed that since nearly 26(twenty-six) MLAs including the Chief Minister were absent from the proceedings of the House, it was deemed prudent to specifically inform the Chief Minister so that he could be present for the Session on 17.12.2015.
xviii. On 17.12.2015, 33(thirty-three) MLAs of the 60(sixty) Members of the Arunachal Pradesh Legislative Assembly, cutting across party affiliation, adopted a motion on composite floor test, showing their no confidence in the Nabam Tuki led Congress Government in the State. The composite floor test motion was moved by 11(eleven) BJP MLAs and 2(two) independents and was passed by all 33(thirty-three) Members including 20(twenty) from Congress (excluding the Deputy Speaker). The Deputy Speaker, who was in the Chair did not participate in the voting as per the tradition. Even though, the Deputy Speaker had invited the Chief Minister and other Ministers to speak against the motion, the 26(twenty-six) Congress Legislators, including the Chief Minister Nabam Tuki and his Council of Ministers abstained Page 26 of 103 from attending the House Session summoned by the Governor. After completion of the exercise, the Deputy Speaker declared the result after counting the signatures put in favour of the motion and announced that Kalikho Pul has been chosen as a new leader of the House.
xix. That on successful completion of the Session, the Deputy Speaker by letter dated 17.12.2015, forwarded the records of the Session to the Governor, which included-
(a) Bulletin Part-I (17.12.2015);
(b) Report by Deputy Speaker;
© Vote of records with signatures of MLAs on a composite floor test on motion;
(d) Video record of proceedings of 2nd sitting of the 6th Session;
and
(e) Certificate of veracity from the Videographer (N.K. Works, Itanagar).
xx. On 17.12.2015, the petitioner filed WP(C) No.7745/2015. The petition was moved unlisted after permission was accorded for the same on the order of Hon'ble the Chief Justice (Acting) of the Hon'ble Court. The respondent Nos.4 & 5 in the writ petition were represented by their counsel. The rest of the respondents in the writ petition were not represented. There was a caveat Page 27 of 103 filed by a BJP MLA, Shri Tage Taki but he was not a party in the writ petition.
xxi. The interim order passed by the Hon'ble Court without hearing the applicants, has seriously prejudiced them. The interim order has the affect of rewarding the wrong doers including the petitioner who subverted the democracy and crippled the voice of the majority of Members of the House in order to save the Government of Shri Nabam Tuki, which as the events have clearly shown, has been reduced to a minority.
xxii. The writ petition ought to have been dismissed without issuing notice, first, because the averments made in the petition raised the question as to whether the Governor acted malafide or bonafide. This cannot be decided without requiring the Governor personally to account to the Court for his actions, because he alone can deal with the allegation, for malafides or bad faith is a state of mind, and the Governor and no one else, can depose to his state of mind. In such a situation, Governor's action is not justiciable for Article 361(1) bars the jurisdiction of the Court Secondly, the petition raises an issue as to whether the Governor has a discretion to prepone a Legislative Assembly Session. In view of Article 163(2), the Governor and not the Court, is the sole Judge of that question.
Thirdly, the petition raises a question on the role of Governor in the proceedings of the Legislature, which again cannot be examined by the Court in view of Article 212 of the Constitution. Since all the three questions raised in the petition are outside the jurisdiction of the Court, the petition should not have been entertained, not to speak of passing an interim order.
Page 28 of 103xxiii. The language of Article 174(1) of the Constitution of India is directory in the matter of summoning of the House. Article 174(2) clearly says that the Governor may from time to time prorogue the House or dissolve the Legislative Assembly. It is evident that the power under Article 174 is to be exercised by the Governor in his discretion. If that were not so, it would lead to piquant situation to the detriment of proper and effective working of democratic principles of Government. For instance, if there is a motion of No Confidence pending discussion in the Assembly, the Chief Minister in order to steer clear of the situation, may ask the Governor to prorogue the House. Similarly, where the Government is in a minority in the Legislative Assembly, the Chief Minister by the instrument of aid and advise to the Governor, can so manipulate the machinery of proroguing the House as to perpetuate his Council of Ministers and power, avoiding from time to time, facing the Assembly. Likewise, the Speaker being faced with the situation of removal (as in the instant case) may refuse to cooperate with the Governor in holding of the Assembly Session. Therefore, the Governor is under a duty to exercise his power under Article 174 only in his discretion, after considering all facts and relevant matters in summoning or preponing the summoning of the House. It is not for the Court to examine as to whether the exercise of discretionary power of the Governor is in accordance with and will promote democratic principles inasmuch as any such exercise by the Court would take it to the political arena. xxiv. The law is well settled that even an erroneous decision or interpretation of the rules or procedure by the Speaker cannot be the subject matter of scrutiny in a Court of law. The Court Page 29 of 103 cannot act as a Court of revision against the Legislature or the rulings of the Speaker or Deputy Speaker acting as a Speaker, as the case may be, with respect to the proceedings in the House in question. Further, no writ can lie in a matter pertaining to holding of a Session of the Assembly and/or the resolutions passed in such Session and the nature of proceedings conducted therein. Article 212 of the Constitution clearly prohibits any such judicial interference.
xxv. Under Article 159 of the Constitution, the Governor is to preserve, protect and defend the Constitution and the law of the country. He is the only person on the spot who can take stock of the situation and take appropriate action including the preponing the Session of the Assembly for consideration of the resolution for removal of the Speaker. He can exercise such powers in his discretion if he has reasons to believe that the Speaker and the Chief Minister are trying to prevent such a situation because they do not have the support of majority to defeat such a resolution in the House. It is submitted that in the circumstances when No Confidence Motion has been passed against the Government and the Ministry refuses to resign or when the Governor has a reasonable ground to believe that the Chief Minister no longer enjoys the Confidence of the Legislative Assembly and he is no longer prepared to face the Assembly immediately on one pretext or other or when the Governor believes that the Ministry is trying to maintain its majority in the Legislative Assembly by unfair means or when the Governor believes that the Speaker in order to prevent or delay his removal is not willing to hold Session of the House without any further delay, the Governor can always exercise his discretion and take appropriate action, Page 30 of 103 which is not subject to judicial review in view of Article 163 of the Constitution.
xxvi. The Governor's constitutional role cannot be viewed as a frozen one. Neither the basic constitutional provisions nor the empirical situation at any point of time can adequately explain the reality of the Gubernatorial position. This role is essentially to be viewed as an evolving one. One crucial variable that determines the Governor's role is the state of domestic politics of a particular State. Viewed in this light, the Governor's role, in reality, is shaped and reshaped by the dynamics and the dominant forces and factors in State politics. Hence, it is futile to look for a standard role of the Governor that is of universal validity. It is not for the Court exercising its writ jurisdiction under Article 226 of the Constitution to sit over the action of the Governor to decide as to whether the Governor in a particular situation fairly exercise his discretion or that whether his exercise of discretion was in furtherance of democratic principles and fair democratic practices.
xxvii. The prima facie observation of the Hon'ble Court at Paragraph 19 of its order that the Governor acts as a Constitutional head and, therefore, his decision to prepone the Assembly Session without advise of the Chief Minister and primarily on requisition made by the opposition MLAs, taints the Governor's order and renders it unworthy of the State Constitutional head, is erroneous and beyond the jurisdiction of the Hon'ble Court. Similarly yet another observation of the Hon'ble Court at Paragraph 20 of the order that the power of the Governor to send message to the House is with respect to a pending Bill in Page 31 of 103 the house and this power under Article 175(2) cannot be utilized to send message on a pending resolution for removal of the Speaker and hence this appears to be an act of exceeding the jurisdiction, is equally erroneous and is based on incorrect understanding of not only the scope of Art 175 but also the scope of discretionary powers of the Governor under the provisions of the Constitution either expressly or by necessary implication.
xxviii. At the motion stage, when the Hon'ble Court did not have the advantage of learning the facts from all the contesting parties, it ought to have restrained itself from observing in Paragraph 21 of the order that "the resolution for removal of the Deputy Speaker was moved prior to the similar resolution for the Speaker and yet the Governor has fixed the later resolution as the first agenda". This observation of the Hon'ble Court is based on factually incorrect pleading. The Hon'ble Court ought to have verified the facts and it ought not to have made such prima facie observation.
xxix. The observations of the Hon'ble Court in Paragraph 23 of its order make it evident that the Hon'ble Court stepped into political thicket which it ought not to have done exercising its jurisdiction under Article 226 of the Constitution. On the one sided presentation of facts, the Hon'ble Court could not have come to a prima facie conclusion that the action of the MLAs are motivated by political exigencies and a manifestation of this can be seen from an FIR dated 20.12.2015 (sic 09/10.12.2015). It is not uncommon in India that the FIRs are registered on false complaints and manufactured stories on account of political exigencies. The aforementioned FIR was registered against one Page 32 of 103 of the applicants, Shri Kalikho Pul (applicant No.11). Without hearing the applicants, the Hon'ble Court ought not to have made such an observation. Shri Kalikho Pul, who is one of the applicants in the instant application are taking appropriate legal measures against this politically motivated FIR against him. Such observations of the Hon'ble Court in its interim order without hearing the applicants have seriously prejudiced them. xxx. Further observations of the Hon'ble Court in Paragraph 23 of the order that "the Governor as the Constitutional Head, is expected to discharge his role with dispassion and within the Constitutional framework but the impugned steps taken by the State's Governor which facilitated the political battle to move in certain direction in the tussle for power, reflects the non-neutral role of the Constitutional Head and this is undermining the democratic process", are clearly erroneous. Such observations, based as they are, on one sided presentation of facts by the petitioner, ought not to have formed part of an interim order. To say that the Governor did not act dispassionately and that he facilitated the political battle to move in certain direction clearly amounts to doubting bonafide of the Governor, which the writ Court could not have done exercising its powers under Article 226 of the Constitution.
xxxi. The interim order of the Hon'ble Court, rewarded those who have been trying to subvert the democratic process. It is a common knowledge as to how the Assembly was locked in defiance of the order of the Governor. The role of the petitioner in trying to delay the holding of Session to prevent his imminent removal, is highly reprehensible. Likewise, the role of the State Administration under Shri Nabam Tuki as the Chief Minister on Page 33 of 103 16.12.2015 and 17.12.2015 was against all democratic norms and values and was also contrary to the law of the land. Ignoring all these significant aspects, the Hon'ble Court at the motion stage made prima facie observations on the role of the Governor and the applicants, on the one sided presentation of facts by the petitioner thereby committing serious jurisdictional errors. xxxii. The interim order has crippled the will of the majority of the Members of the House and derailed the democratic process. The prima facie observations of the Hon'ble Court are based on incorrect facts and on incorrect understanding of the sequence of events as it did not have the advantage of knowing facts from all the contesting parties. Moreover, by the interim order, the Hon'ble Court has kept in abeyance the order of the Governor dated 09.12.2015 and all other consequential actions arising from legislative proceedings while at the same time it has ignored the prima-facie unconstitutional action of the Speaker of disqualifying the applicants. Not only the Hon'ble Court ignored the aforementioned aspect but by way of its interim order it has revived the aforementioned unconstitutional action of the petitioner. The revival of the order of the Speaker of disqualifying the applicants by the interim order of this Hon'ble Court has seriously prejudiced them. Hence, the present case is a fit case wherein the Hon'ble Court may be pleased to recall its interim order.
[13] Pleas and grounds urged in I.A. No. 30/2016 :-
Page 34 of 103a) The political turmoil in Arunachal Pradesh has been going on since more then 8-9 months and it further worsened in the last around 3 months when a group of 21 Members of Legislative Assembly (MLAs belong to the ruling Indian National Congress (I) Party clamored for charge of guard in Arunachal through removal of the present Chief Minister, Shri Nabam Tuki. It is stated that these group of 21 MLAs of Arunachal Pradesh Legislative Assembly camped in Delhi for last 3 months to press for their demand.
b) The Governor of Arunachal Pradesh issued an order under Article 174(1) of the Constitution of India summoning the 6th session of the Arunachal Pradesh Legislative Assembly from 14/01/2016 to 18/01/2016.
c) On 19/11/2015 a group of 13 MLAs submitted a letter to the Governor of Arunachal Pradesh seeking preponing of the Session of Arunachal Pradesh Legislative Assembly which was scheduled to be held on from 14/01/2016 to 18/01/2016 to consider and vote for the resolution for removal of the Speaker brought by them. It is stated that the notice of resolution for removal of the speaker was submitted on 19/11/2015 to the office of the Speaker which the said office duly received. Be it stated that as per provisions of proviso of Article 179 at least 14 days notice has to be given for moving a resolution for the removal of Speaker or Deputy Speaker.
d) Thereafter on 27/11/2015 the Commissioner to the Governor of Arunachal Pradesh vide his letter No. GS/I-115/00(Vol-II)/6594 dated 27/11/2015 requested the Secretary, Arunachal Pradesh Legislative Assembly to furnish information with regard to (i) date of receipt of notice for removal of Speaker (ii) action being taken by the Legislative Assembly on the notice and (iii) highlights of precedents. However, the Secretary of Arunachal Pradesh Legislative Assembly did not answer to the said queries.Page 35 of 103
e) Having not received any response from the end of the Secretary, Arunachal Pradesh Legislative Assembly, the Deputy Secretary to the Governor wrote another letter No. GS/I-115/00 (Vol.II)/6717 dated 07/12/2015 requesting him to furnish the information sought for by the Governor vide letter dated 27/11/2015.
f) In the mean time a rumour was out in the air that some members of the Arunachal Pradesh legislative Assembly have submitted a notice for removal of Deputy Speaker. Under such circumstances, the Governor of Arunachal Pradesh directed his officials to make enquiries regarding the matter. Pursuant to the direction issued by the Governor, the Deputy Secretary to the Governor vide his letter No. GS/I-115/00(Vol-II)/6742 dated 07/12/2015 requested the Secretary, Arunachal Pradesh Legislative Assembly to furnish information relating to the notice for removal of Deputy Speaker. By the said letter he had specifically made the following queries :
(i) Date of receipt of the notice of the resolution in the Legislative Assembly,
(ii) Action taken by the Legislative Assembly on the notice.
(iii) Highlight of the precedents, if any.
Neither the office of the Speaker nor any other authority has informed the office of the Governor about the Notice for resolution of removal of Deputy Speaker at any point of time. It would not be out of place of mention herein that even in the writ petition they have not annexed any copy of such Notice, which clearly reveal an attempt on the part of the writ petitioner to mislead this Hon'ble Court.
g) In the meantime the Deputy Secretary to the Governor vide his letter No. GS/I-115/00(Vol.II)/6743 dated 07/12/2015, while referring to his earlier communication dated 27/11/2015 and 03/12/2015 again Page 36 of 103 requested the Secretary, Arunachal Pradesh Legislative Assembly to furnish information sought for with regard to notice of resolution for removal of the Speaker. The Deputy Secretary to the Governor requested the Secretary, Arunachal Pradesh Legislative Assembly to send his reply latest by 08/12/2015.
h) The Secretary, Arunachal Pradesh Legislative Assembly vide his letter No. LA/Leg/-26/2015 dated 08/12/2015 submitted his reply to the queries made by the office of the Governor. In the said letter the Secretary, Arunachal Pradesh Legislative Assembly informed that they had received the notice of the resolution for removal of the Speaker on 09/11/2015.
i) In the mean time as per the direction of the Governor, Aid De Camp to the Governor (ADC), Tage Habung went to the Legislative Assembly Secretariat, Naharlagun and met the Secretary, Additional Secretary, Officer on Special Duty to Speaker, Under Secretary as well as the Senior Officer and made enquiries about the notice of resolution for removal of Speaker and Deputy Speaker. But these authorities did not provide any information. In this regard the ADC to Governor put up a written note on the same day i.e. 08/12/2015.
j) Having not received any communication from the office of the Speaker of Arunachal Pradesh Legislative Assembly and also finding that no action has been initiated from his end, the Governor of Arunachal Pradesh obtained opinion from legal luminaries. Since there was an attempt on the part of the office of the Speaker to subvert the mandate of the Constitution, it became imperative for the Governor to interfere in the matter by exercising powers conferred by the Article 174(1) of the Constitution of India. Accordingly the Governor passed a Speaking Order dated 09/12/2015 modifying the summons already issued and instead summoning the 6th Arunachal Pradesh Legislative Assembly on 14/12/2015 in exercise of the power under Article 174(1) of the Page 37 of 103 Constitution of India. The assembly was summoned to meet on 16/12/2015 at 10 A.M.
k) On the same date the Governor of Arunachal Pradesh issued a Message under Article 175(2) of the Constitution of India fixing the resolution for removal of the Speaker as first item on agenda of the State Assembly at its first sitting of its 6th session. It was clarified in the message that as the resolution for removal of the Speaker shall be the first item of business at the first sitting of the 6th Session of the 6th Arunachal Pradesh Legislative Assembly, the Deputy Speaker shall preside over the house from the first moment of the first sitting of the House in accordance with the provision of Article 181 (1) of the Constitution of India.
l) On 13/12/2015 the Deputy Speaker, Arunachal Pradesh Legislative Assembly submitted a representation before the Governor, Arunachal Pradesh informing him about the action of the Speaker in not taking any action pursuant to the order and summon issued by the Governor. No official communication was issued to the Governor by any person objecting the Order as well as the Summons.
m) On 14/12/2015, the State Cabinet passed a resolution to the effect that the Governor's decision to prepone the Assembly Session is contrary to the Constitutional provisions and the rules of procedures and conduct of business of the Arunachal Pradesh Legislative Assembly. On the same day, i.e. 14/12/2015, the Speaker also wrote to the Governor for allowing the House to function as per its originally notified schedule.
n) Again on the said date the Chief Minister of Arunachal Pradesh by his letter No. Cab/M-18/2015 dated 14/12/2015 informed the Governor about the advice of the Cabinet by annexing a copy of the Cabinet's decision.
Page 38 of 103o) In the mean time the office of the Governor also received a letter dated 14/12/2015 from the Speaker of the Assembly whereby he has objected to the Order and Message by the Governor dated 09/12/2015.
p) On 14/12/2015 itself a letter was issued by the Officer on Special Duty to the Chief Minister to the Commissioner to the Governor seeking for audience with the Governor by the Council of Ministers and Members of Legislative Assembly on 15/12/2015. The letter was received by the Commissioner to the Governor at 10.15 P.M. on 14/12/2015 which he endorsed to the ADC on 15/12/2015 at 7:45 AM. The ADC brought it to the notice of the Governor in the office chamber at 10.00 AM on 15/12/2015. The Governor granted audience to Council of Ministers at 6 P.M. of 15/12/2015. At around 6.15 P.M. 9(nine) ministers including the Chief Minister Shri Nabam Tuki came to meet the Governor and the Chief Minister initiated the discussion, all of a sudden few ministers more particularly the Education Minister Sri Tapang Taloh and Transport Minister without any provocation started abusing the Governor forcing his security personnel to interfere. There was infact an attempt to assault the Governor to force him to withdraw his order. The Commissioner to the Governor duly informed the incident to the Director General of Police which was videographed.
q) On 16/12/2015 the Governor received a letter from the Deputy Speaker, Arunachal Pradesh Legislative Assembly whereby he was informed that 34 MLAs including him went to the Assembly premises to attend the session but they found the assembly premises locked. All roads to the Legislative Assembly was also blocked by the police. And inspite of repeated requests the same was not opened and they have suggested an alternative venue for holding the assembly session. Along with the said letter a Memorandum signed by 33 MLAs was also annexed. The file was put up but since there was no time to issue Page 39 of 103 formal order the Governor by approving the same directed his staff to communicate his approval verbally.
[14] In the said I.A., the applicant has also referred to the observations made against him in the interim order of this Court which according to the applicant amount to casting aspersions on the Governor. It has also been contended that the writ petitioner having not made the Governor a party respondent, although has alleged malafide exercise of power by him and also not having impleaded the concerned MLAs, who had served notice or resolution for removal of the Speaker, the writ petition was not maintainable and thus ought to have been dismissed. It has further been contended that the resolution for removal of Speaker passed in course of the proceeding dated 16/12/2015 of the Arunachal Pradesh Legislative Assembly cannot be called in question on any ground of irregularities or procedure under the mandate of Article 212 of the Constitution of India.
[15] According to the applicant, the Governor had acted with due diligence and after consulting with experts and taking opinion from the experts in the field towards exercising his powers conferred by Article 174 (1) of the Constitution to prepone the 6th session of the Arunachal Pradesh Legislative Assembly to deal with the extra- ordinary situation. It has also been stated that to deal with the extra-ordinary situation, the Governor exercised his discretion to uphold the democratic values as enunciated by the Constitution and to stop the step from plunging into a constitutional crisis.
[16] In the application, the applicant has further contended that the circumstances leading to preponing of the 6th session of Arunachal Pradesh Legislative Assembly from 14/01/2016 to 16/12/2015 requiring the Governor to act in his discretion, the decision of the Governor in his discretion is final and the validity of advancing of the Assembly session cannot be called in question on the ground that he ought or ought not to have acted in his discretion. The applicant has urged that under the mandate of law particularly under Article 175 of the Constitution of India, the Governor of a State Page 40 of 103 having been bestowed with the rights to send messages to the House of the Legislature of the State and the House being required to consider any matter required by the message to be taken into consideration the message dated 09/12/2015 issued from the office of the Governor of the State cannot be assailed before the court of law and that being the fact the action of the learned single Judge in coming to the conclusion that the said power cannot be utilized to send message on a pending resolution for removal of the Speaker being without jurisdiction is not tenable in law and facts of the case and as such the impugned order dated 17/12/2015 is liable to be interfered with.
[17] It has further been contended that the decision of the Governor of the State of Arunachal Pradesh in passing the order dated 09/12/2015 preponing the State's Assembly Session, the message of the Governor dated 09/12/2015 fixing resolution of removal of Speaker as the first item of business in the agenda of the preponed assembly session, the approval of the proceeding of the session held outside the assembly hall and the resolution of the order for removal of the Speaker and the disqualification of respondent Nos. 2 to 15 made by the Speaker under the Anti Defection Law are all following the exercise of due discretion by the Governor in the backdrop of proven majority of the MLAs opposing the Speaker of tdhe House and the fact that the Speaker himself failed to act on the notice for his removal from office and as such the impugned order is liable to be adequately modified forthwith.
[18] I have heard the learned counsel representing the parties who extensively argued in reference to the pleadings, constitutional provisions and also certain case laws. While the learned counsel representing the petitioners emphasized on the role of the Governor under the constitutional scheme alleging biasness in respect of the impugned decisions, the learned counsel for the respondents argued that the Governor having exercised his discretionary power in the given facts and circumstances and there being apparent show of strength in favour of the respondents, so as to command majority in the Assembly, the petitioners cannot call in Page 41 of 103 question the sound discretion applied by the Governor towards exercising his power and jurisdiction under Article 174 and 175(2) of the Constitution. As regards the plea of the petitioners that the Assembly session could not have been held outside the house, the learned counsel for the respondents referring to the pleadings argued that an extra-ordinary situation was created by the writ petitioner involved in WP(C) No. 7745/2015, in which the elected MLAs could not even enter the Assembly premises and consequently the Assembly session had to be held outside the Assembly premises.
[19] While the tenor of the argument advanced by the learned counsel for the petitioners is towards questioning the legality and / or validity of the action of the Governor, firstly, towards preponing the Assembly session and secondly fixing the agenda items to be tabled on 16/12/2015 in such preponed assembly session, the tenor of argument advanced by the learned counsel representing the respondents is towards questioning the very maintainability of the writ petitions on the ground that the Governor having acted with his domain, competence and jurisdiction towards passing the impugned orders, the same cannot be called in question invoking the jurisdiction of this Court under Article 226 of the Constitution of India. They further contended that the Governor having acted within the exception provided under the constitutional scheme and recognized by judicial pronuncement, coupled with the fact that it is not a case of the impugned decision being taken by the Governor, based on wholly extraneous and irrelevant ground, no judicial review which is very limited in such matters is called for.
[20] Mr. L.N. Rao, learned senior counsel, Mr. S.S. Dey, learned senior counsel and Mr. P.K. Tiwari, learned senior counsel assisted by Mr. M. Nath, learned counsel for the respondents in support of their above contentions placed reliance on the following decisions :-
i. (1974) 2 SCC 831 (Sam sher Singh Vs. State of Punjab) ii. (2004) 8 SCC 788 (M .P. Special Police Establishm ent Vs. State of M .P. Page 42 of 103 iii. (2006) 2 SCC 1 (Ram eshw ar Prasad Vs. Union of India), iv. (2013) 3 SCC 1 (State of Gujarat Vs. Justice R .A. M ehta, v. (1995) (3) ALT 929 [M ANU/ AP/ 0708/ 1995 (NT R am a R ao Vs. Governor of A.P.) vi. AIR 1999 Bom 53 (Pratapsingh R ajirao Rane Vs. Governor of Goa, vii. 86 L.W . 365 (M ad HC- Full Bench) (K .A. M athialagan Vs. Srinivasan, Dy. Speaker, viii. M ANU/ GH/ 0412/ 2001 (Nipm acha Singh Vs. Secretary, M anipur Legislative Assem bly, ix. (1969) 1 SCR 478 (State of Punjab Vs. Styapal Dang).
[21] Mr. Jain, learned senior counsel assisted by Mr. B.D. Goswami, learned counsel representing the Governor argued on the propriety of the purported adverse comments made in the interim order and urged for expunction of the same. He also submitted that the Governor having applied his discretion towards arriving at the impugned decisions, the said discretion cannot be called in question in absence of anything to show that he had acted in any manner which could be termed as being violative of any constitutional provisions.
[22] Mr. K.N. Choudhury, learned senior counsel assisted by Mr. J. Patowary, learned counsel representing the petitioners elaborately arguing the case projected in WP(C) No. 7745/2015 in reference to certain case laws, referred to below, questioned the very conduct of the Governor in taking recourse to the impugned decisions and actions. According to him the Governor acted beyond his scope and jurisdiction but acted as per the dictate of a particular political party as its representative. The decisions referred to by him are as follows :-
i. (1974) 2 SCC 831 (Sam sher Singh Vs. State of Punjab) Page 43 of 103 ii. (2005) 2 SCC 92 (Pu. M yllaihlychho and others Vs. State of M izoram and others) iii. (2004) 8 SCC 788 (M .P. Special Police Establishm ent Vs. State of M .P. and others) iv. 1992 Supp(2) SCC 651 ( K ihoto Hollohan Vs. Zachillhu and others) v. AIR 1952 SC 242 (The State of Bihar Vs. Sir K am eshw ar Singh) vi. (1979) 3SCC 324 (Union of India and others Vs. Valluri Basavaiah Chow dhary and others) vii. (2007) 3 SCC 184 (Raja R am Pal Vs. Hon'ble Speaker, Lok Sabha and others) viii. (1993) 2 SCC 703 (Dr. K ashinath G. Jalm i and another Vs. The Speaker and others) ix. (1998) 7 SCC 517 (M ayaw ati Vs. M arkandeya Chand and others) [23] Mr. Ashwini Kumar, learned senior counsel representing the petitioner in the other writ petition being WP(C) No. 7998/2015, supporting the arguments advanced by Mr. K.N. Choudhury, learned senior counsel, referred to above, also referred to the decision in Sam sher Singh (Supra) , so as to contend that the Governor acted beyond his jurisdiction towards taking the impugned decisions.
According to him, the action of the Governor is beyond the exception curved out from the mandatory requirements envisaged in the constitution requiring him to act only on the advice of the council of Ministers.
[24] I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the case laws on which both sides placed reliance in support of their respective arguments. My appreciations, findings and conclusions are as follows :-
Page 44 of 103[25] As noted above and contended by the respondents, 33(thirty-three) MLAs out of 60(sixty) including the Deputy Speaker, adopted a motion on composite floor test, showing their no confidence against the Leader of the present Government. Although were invited to speak against the motion, but 26(twenty-six) Legislators including the Chief Minister and his Council of Ministers abstained from the House Session summoned by the Governor. On completion of the Session, the Deputy Speaker by letter dated 17.12.2015 forwarded the records of the Sessions to the Governor, which included - (i) Bulletin Part-I (17.12.2015); (ii) Report by Deputy Speaker; (iii) Vote of records with signatures of MLAs on a composite floor test on motion; (iv) Video record of proceedings of 2nd sitting of the 6th Session; and (v) Certificate of veracity from the Videographer (N.K. Works, Itanagar). On the same day, the writ petition being WP(C) No.7745/2015 was filed and moved. Although the respondent Nos.4 & 5 in the writ petition were represented by their counsel, but the rest of the respondents including the newly impleaded respondents were not represented. Although a Caveat was filed by one of the MLAs, namely, Shri Tage Taki, but he was not made party to the writ petition. For a ready reference, the Bulletin Part-I (17.12.2015) (Brief record of proceedings) (Annexure-16 to the I.A. No.2838/2015) is reproduced below:-
"ARUN ACHAL PR ADESH LEGI SLATI VE ASSEM BLY N AHAR ALAGUN : ARUN ACHAL PR ADESH BULLETI N PART I
17 th Decem ber, 2015 (Brief record of proceedings) 10 18 AM I n the chair
1. As the office of Speaker had fallen vacant w ith the adoption of resolution for rem oval of Shri N aam Rebia from the Office of the Speaker w .e.f 3 05 PM on 16.12.2015, Shri T.N . Thongdok, the Deputy Speaker took the Chair. Change of Place of sitting :
2. Deputy Speaker inform ed that since the Assem bly prem ises at N aharlagun w as still locked and as the Civil and Police Adm inistration of the State failed to facilitate the functioning of the Legislative Assem bly, the venue of the Page 45 of 103 second sitting w as shifted to Shoto-Kan Karate Training Hall, N aharlagun, located near the Assem bly prem ises under intim ation to the Governor. 10 19 AM Obituary reference
3. The House m ade obituary reference to the passing aw ay of Dr. APJ Abdul Kalam , form er President of I ndia. The follow ing m ade the obituary reference:
(1) Shri T.N . Thongdok, the Deputy Speaker (2) Shri Tam iyo Taga, Hon'ble Leader of Opposition (3) Shri W anglin Low angdon House stood in silence for a m inute as a m ark of respect to late Dr. APJ Abdul Kalam .
Panel of Chairm en
4. The follow ing Panel of Chairm en, as nom inated by the Deputy Speaker, w as already published in the Bulletin Part I I dated 16.12.2015:
10 44 AM Com posite floor test M otion
5. (i) SHRI TAM I YO TAGA m oved the follow ing m otion:
'This House expresses, -
(1) its w ant of confidence in the Council of M inisters headed by Shri N abam Tuki; and (2) its confidence in Shri Kalikho Pul, a m em ber of the House, to head a new Council of M inisters and urges upon the Governor to sw ear in the Council of M inisters headed by Shri Kalikho Pul at the earliest.' 10 48 AM
4. (ii) The M otion w as put to leave the House. The follow ing M em bers stood in support of leave being granted to the M otion.
(1) Shri Tam iyo Taga
(2) Shri Japu Deru
(3) Shri Tage Taki
(4) Shri Tam ar M urtem
(5) Shri Tum ke Bagra
(6) Shri Kento Rina
(7) Shri Kaling M oyong
(8) Shri Olom Panyang
(9) Dr. M ohesh Chai
(10) Shri Laisam Sim ai
(11) Shri Tesam Pongte
(12) Shri Tsering Tashi
(13) Shri Paknga Bage
Deputy Speaker declared that leave has been granted to the M otion by the House.
10 50 AM
4. (iii) Discussion and voting on the M otion w as taken up by the House. The follow ing M em bers spoke on the M otion:
(1) Shri Tam iyo Taga
(2) Shri Japu Deru
Page 46 of 103
(3) Shri Paknga Bage
(4) Shri Laisam Sim ai
11 51 AM
The M otion w as put to vote of the House. Deputy Speaker declared that the M otion w as adopted by voice vote.
11 53 AM The Deputy Speaker requested those w ho said "Ayes" to stand up. 33 M LAs stood up in support of the M otion. Deputy Speaker declared that the M otion w as adopted.
11 56 AM The Deputy Speaker called all the M em bers present to vote on the R oll of M em bers by affixing the signatures against the relevant colum ns nam ely "Ayes", "N oes" and "abstentions". 33 M em bers voted on the Roll of M em bers by affixing their signatures.
The follow ing M em bers voted for the M otion through voice vote, standing up and by recording their signatures on Roll of M em bers:
(1) Tsering Tashi
(2) Pem a Khandu
(3) Japu Deru
(4) Kum ar W aii
(5) Kam eng Dolo
(6) Tage Taki
(7) M arkio Tado
(8) Tam ar M urtem
(9) Paknga Bage
(10) Tum ke Bagra
(11) Jarkar Gam lin
(12) Tam iyo Taga
(13) Pasang Dorjee Sona
(14) Kento Rina
(15) Kaling M oyong
(16) Lom bo Tayeng
(17) Olom Panyang
(18) M utchu M ithi
(19) Dr. M ohesh Chai
(20) Kalikho Pul
(21) Chow Tew a M ein
(22) Zingnu N am choom
(23) Chow na M ein
(24) Kam lung M ossang
(25) Laisam Sim ai
(26) Phosum Khim hum
(27) Tesam Pongte
(28) W angki Low ang
(29) W anglam Saw in
(30) W anglin Low angdong
(31) Gabriel D. W angsu
(32) Thangw ang W angham
(33) Honchum N gandam
The follow ing M em bers voted against the M otion:
Page 47 of 103
NIL
The follow ing M em bers abstained from voting on the M otion:
NIL
12 10 PM 4 (iv) The Hon'ble Deputy Speaker perform ing the functions of the Speaker declared that the com posite floor test M otion m oved by Shri Tam iyo Taga, the Hon'ble Leader of Opposition, w as adopted by the House.
4 (v) The Deputy Speaker further declared that the Governm ent headed by Shri N abam Tuki has lost confidence of the House and Shri Kalikho Pul, M LA has been chosen as the new leader of the House.
Announcem ent re : illegal and unconstitutional acts of Shri N abam Rebia, M LA
5. The Deputy Speaker, by w ay of abundant caution, declared that all parallel sittings presided over by Shri N abam Rebia, M LA at any place including the Assem bly Hall, N aharlagun, is illegal and unconstitutional.
12 13 PM As there w as no business before the House for the entire session, it w as adjourned sine die.
Sd/ - I llegible
N AHARLAGUN T.N . THON GDOK
17 DECEM BER 2015 DEPUTY SPEAKER
PERFORM I N G FUN CTI ON S OF SPEAKER'
[26] With the aforesaid I.A., report dated 17.12.2015 (Annexure-17) has
also been enclosed. The report was prepared by the respondent No.1, i.e. the Deputy Speaker, highlighting the circumstances leading to holding of the Assembly Session at the particular Hall (Shoto-Kan Karate Training Hall, Naharlagun). For a ready reference, the said report is also reproduced below:-
"Report on the collapse of civil and police adm inistration in N aharlagun on the 17 th Decem ber, 2015 w hich led the SI XTH AR UN ACHAL P RADESH LEGI SLATI VE ASSEM BLY to m eet for its second sitting of the Sixth Session at the SHOTO-KAN KARATE TRAI N I N G HALL, N aharalagun N aharlagun 17.12.2015
1. I , T.N . Thongdok, the Deputy Speaker of the Arunachal Pradesh Legislative Assem bly, on the basis of the ground reality at and around the Assem bly prem ises, Page 48 of 103 N aharlagun and on the basis of hearsay inputs, sent an em ergency report to the Governor today (17.12.2015) w ell before the com m encem ent of the second sitting of the sixth session of the Arunachal Pradesh Legislative Assem bly at the alternative venue i.e. Shoto-Kan Karate Training Hall, N aharlagun.
2. W hile reiterating the apprehensions expressed in the em ergency report as aforesaid, the follow ing serious developm ents deserve attention of the Hon'ble Governor:
(1) Reports have com e that the Techi Takar Com m unity Hall, G-Sector, N aharlagun, w here the fist sitting of the sixth session, under intim ation to the Governor, w as held yesterday (16.12.2015) had been ransacked by hooligans causing heavy dam age to property.
(2) Reports have also com e that the Police have so deployed their forces so as to ensure that the M LAs do not gain access to the Assem bly prem ises.
(3) Reports have further com e that huge num ber of volunteers loyal to Shri N abam Tuki and Shri N abam Rebia have taken control of roads and streets around the Assem bly prem ises to launch physical attacks on M LAs trying to gain access to the Assem bly Hall and also to create m assive law and order problem so that the sm ooth conduct of the Assem bly is gravely affected and today's agenda of the Assem bly w hich is the com posite floor test m otion w hich also contains a no-confidence com ponent against the Tuki Governm ent, is stalled.
3. Accordingly, under intim ation to the Hon'ble Governor, I had taken a decision to hold the second sitting of the Sixth Session at an alternative site very near to Assem bly prem ises. The second sitting w as accordingly held at Shoto-Kan Karate Training Hall, N aharlagun. The proceedings com m enced at 10 18 AM , w ith 33 M LAs being present in the House. The House com pleted the agenda slated for today (17.12.2015) and adopted a com posite floor test m otion expressing no-confidence in the Council of M inisters headed by Shri N abam Tuki and confidence in Shri Kalikho Pul as the new leader of the House.
4. As there w as no business before the House for the entire session, I adjourned the House sine die though the Hon'ble Governor fixed the last sitting on 18.12.2015.
5. N ow I have unconfirm ed reports that all the roads have been blocked by hooligans and m iscreants so that the Presiding Office and the new Leader of the House do not have access to Raj Bhavan for production of docum ents, claim s etcl, to the Hon'ble Governor.
6. W ithout adverting to m uch, tersely I w ould like to state that unlaw ful and authoritarian attitudes of those w ho have so far been in pow er cannot be allow ed to prevail but only the dem ocratic decisions of the House that m ust stand concretized through Constitutionally chosen m ethods.
Sd/ - I llegible (T.N . THON GDOK) DEPUTY SPEAKER FUN CTI ON I N G AS SPEAK ER' HI S EXCELLEN CY THE GOVERN OR Page 49 of 103 RAJ BHAVAN I TAN AGAR Copy to : 1. The chief Secretary Governm ent of Arunachal Pradesh I tanagar
2. The Director General of Police Governm ent of Arunachal Pradesh I tanagar"
[27] Referring to the aforesaid documents and the fact that by the time the writ petition was moved, the Annexure-16 proceeding was held over with passing of the resolution expressing want of confidence in the Council of Ministers headed by Shri Nabam Tuki and its confidence to Shri Kalikho Pul, a Member of the House, to head a new Council of Ministers and urging upon the Governor to swear the Council of Ministers headed by him at the earliest. It was also argued that having regard to the interim prayer made in the writ petition, referred to above, no interim order could have been granted in terms of the final prayers. As noted above, while the final prayers made in the writ petition is to set aside and quash the Governor's order dated 09.12.2015 preponing the Session of the Arunachal Pradesh Legislative Assembly from 14.01.2016 to 16.12.2015; Governor's message dated 09.12.2015 fixing the resolution for removal of the Speaker as 1st Item of the business; Deputy Speaker's order dated 15.12.2015 quashing disqualification of the respondent Nos.3 to 15 and the notification and resolution dated 16.12.2015 removing the petitioner from the Office of the Speaker of the Legislative Assembly, the interim prayer made is to restrain the respondent No.1, i.e. the Deputy Speaker, from holding any sitting of the Legislative Assembly pursuant to the Governor's order and message dated 09.12.2015.
[28] In the writ petition, the petitioner has called in question holding of the preponed Session of the State Assembly outside the House, responding to which what the respondents have contended has been noted above. In response to Paragraphs
3.12 & 3.13, the petitioner in his counter affidavit has stated thus:-
"(i) (Para 3.12 and 3.13) The contents of the paras under reply, except those that are m atters of record are denied. I t is reiterated that the Governor's Order Page 50 of 103 and M essage dated 09.12.2015 are unconstitutional and illegal. They are part of the larger conspiracy hatched inter alia betw een the 14 disqualified M LAs, BJP and the Central Governm ent to overthrow the present governm ent using unconstitutional m eans. I t is notew orthy that the Petitioner on several occasions had urged the Governor not to engage in said unconstitutional conduct and let the session com m ence as originally scheduled. The disqualified M LAs and BJP M LAs using the aforesaid illegal and unconstitutional Order and M essage disturbed the law and order situation around the state assem bly. I n these circum stances, the concerned authorities in their w isdom took a decision that state assem bly prem ises cannot be opened. I t is notew orthy that if the Applicants and other M LAs w ere aggrieved of the such a decision of the concerned authorities, they ought to have appropriately challenged the sam e before a court of law .
How ever, the Deputy Speaker chose to take law in their ow n hands and hurriedly decided to hold the session outside the State Assem bly. Further, in response the contents of the prelim inary subm issions as w ell as the W rit Petition are reiterated and the sam e are not repeated herein for the sake of brevity and to avoid prolixity."
[29] As will be evident from Annexure-B to I.A. No.2843/2015, the writ petitioner, i.e. the Speaker, vide his note dated 14.12.2015, reproduced below, and addressed to the Home Minister requested not to allow any individual including the Legislators to enter the Assembly Building premises on 15.12.2015; 16.12.2015; 17.12.2015 and 18.12.2015.
"ARUN ACHAL PR ADESH LEGI SLATI VE ASSEM BLY SPEAKER'S CELL M OST URGEN T As the Govt. is aw are of the fact that a serious law and order problem is likely to take place on 16 th of Decem ber, 2015, in view of the unconstitutional and unprecedented sum m oning of the Sixth Session of Sixth Legislative assem bly of Arunachal Pradesh by the Governor of Arunachal Pradesh. I t is given to learn that thousand of anti-social elem ents are taking shelter in the state Capital w ith the m otive to create law and order problem on that particular date. I llegal arm s and am m unition are also reported to have been collected for the purpose. Sources have revealed that the m ain target of the anti-social elem ents w ould be to burn dow n the legislative building of the state Assem bly at N aharlagun.
I w ould therefore request the Hon'ble M inister (Hom e) Govt. of Arunachal Pradesh to provide full-proof security in and around the Assem bly building w .e.f. 15th - 18th December, 2015 on top-most priority basis. I t is also requested that no individual including the Hon'ble Legislators be allow ed to enter the Assem bly building prem ises on 15 th , 16 th , 17 th and 18 th Dec' 15.
Please treat this as most urgent.Page 51 of 103
Urgent Sd/ - I llegible
SP/ City 14.12.15
Deploy sufficient force (N ABAM REBI A)
w ith m onitoring system Speaker
w ith the adm inistration
of I RBN + CPM F
Sd/ - I llegible
14/ 12/ 15
Hon'ble M inister (Hom e), Govt. of Arunachal Pradesh N o.SLA/ Per-01/ 2015-16 Dtd. I tanagar, the 14 th Dec'15 DGP Immediate action may be taken to deploy sufficient IRBN Personnel on the top most priority basis.
Sd/- Illegible 14/12/15 Minister (Home, Power & NCRE) Arunachal Pradesh Itanagar"
[30] Responding to the said command, the Superintendent of Police, Capital, Itanagar by his letter dated 15.12.2015 addressed to the Secretary, Arunachal Pradesh State Legislative Assembly sought for a clarification in respect of the Speaker's aforesaid note. By the said letter, a request was made as to under what provisions of Law/Rules, the request so made should be enforced. It was also apprised that full proof security arrangement had already been put in place. For a ready reference, the said letter is reproduced below:-
"GOVT OF ARUN ACHAL P R ADESH OFFI CE OF THE SUPERI N TEN DEN T OF POLI CE CAPI TAL, I TAN AGAR N o.SPC/ I TA/ OPS-15/ 2015 Dated, 15.12.15 To, The Secretary, A.P . State Legislative Assem bly, N aharlagun.
Sub: Clarification on Hon'ble Speaker's N ote N o.SLA/ Per-01/ 2015-16 dated 14.12.15.Page 52 of 103
Sir, I am in receipt of a N ote from the Hon'ble Speaker, A.P. State Legislative Assem bly, regarding foolproof security to be provided in and around the Assem bly Building. The note also further 'says that. no individual including the Hon'ble Legislators, be allow ed to enter the Assem bly Building prem ises w .e.f. 15.12.15 till 18..12.15.
You Are therefore requested to clarify, on the above stated request m ade in the N ote, as to under w hat Provisions of Law / Rules this request should be enforced.
I t is to further apprise you that fool-proof security arrangem ent has already put in place. I f there is anything additional required in this regard, it should be com m unicated to us w ell in tim e.
Yours faithfully
Sd/ - I llegible
Devender Arya, I PS
S.P. Capital, I tanagar
M em o N o.SPC/ I TA/ OPS-15/ 2015 Dated, 15.12.15
Copy to :
1. The Hon'ble Speaker, A.P. State Legislative Assem bly, N aharlagun for kind inform ation please.
2. The SO to DGP, PHQ, ltanaqar for kind inform ation of DGP please.
3. The SP(OPS), PHQ I tanagar for inform ation please.
4. Office copy.
Sd/ - I llegible S.P. Capital, I tanagar"
[31] From the above narration of fact, what has emerged is that although the Governor was apprised of the resolution for removal of the Speaker but as regards the resolution for removal of the Deputy Speaker, he was not apprised of although was asked for the information. As regards the holding of the Session outside the Assembly premises, the Legislators were debarred from entering into the said premises and it was in such circumstances, the Assembly Session was convened outside the premises. There is also no denial on the part of the writ petitioner that the Assembly premises were locked and consequently the respondents could not enter the Page 53 of 103 said premises. However, the petitioner has contended that the respondents using the illegal and unconstitutional order and message impugned in the writ petition disturbed the law & order situation around the State Assembly and in such circumstances, the concerned authorities in their wisdom took a decision that the State Assembly premises cannot be opened.
[32] In the writ petition, the petitioner has questioned the wisdom of the Governor and has contended that the resolution for removal of the Deputy Speaker having been moved, the Governor could not have given the priority to the resolution for removal of the Speaker in his impugned message dated 09.12.2015. In the I.A., the respondents have dealt with the same referring to the documents annexed to the same. In Paragraphs 3.4 & 3.5 of the I.A., the respondents have contended that on hearing reports about a resolution for removal of the Deputy Speaker having been received by the Secretary/Speaker of the Legislative Assembly, the Governor's Secretariat addressed a letter to the Secretary of the Assembly and also to the Speaker with a request to send the Governor a copy of such notice, if any. According to the respondents, the Governor Secretariat's communication was not responded to. It has further been stated that since the Governor has only received the notice of resolution for removal of the Speaker dated 19.11.2015, in terms of the mandate of first proviso to Article 179 of the Constitution of India, the Governor complying with the notice period of 14(fourteen) days, issued the impugned order dated 09.12.2015 modifying the summons already issued and instead summoning the 6th Arunachal Pradesh Legislative Assembly on 16.12.2015 in exercise of the powers under Article 174(1) of the Constitution of India.
[33] Responding to the above Paragraphs, the petitioner in his counter affidavit has stated that the notice of resolution for removal of the Deputy Speaker was issued on 16.11.2015 and that the Secretary to the Governor issued a letter dated 07.12.2015 requesting for information/details about the notice of resolution for removal of the Deputy Speaker and that the same was replied to on 08.12.2015. On Page 54 of 103 perusal of the relevant documents annexed to the I.A. No.30/2016, filed on behalf of the Governor, it is found that vide Annexure-III letter dated 27.11.2015, the Commissioner to the Governor inquired from the Secretary, Arunachal Pradesh Legislative Assembly about the copies of resolution for removal of the Speaker with the request to forward the copy of the resolution for information and perusal of the Governor. By the said letter, following information were also sought for:
"1. Date of receipt of the notice of the resolution in the Legislative Assembly.
2. Action being taken by the Legislative Assembly on the notice.
3. Highlights of precedents, if any."
[34] This letter was followed by the letter dated 03.12.2015 addressed to the Secretary, Arunachal Pradesh Legislative Assembly with the request to expedite submission of the required information preferably within 3(three) days. Similar letter was also issued on 07.12.2015 on the notice of resolution for removal of the Deputy Speaker asking for similar information. By another letter dated 07.12.2015 addressed to the Secretary, Arunachal Pradesh Legislative Assembly, the Deputy Secretary to the Governor once again requested to furnish the required information on the notice of resolution for removal of the Speaker. Responding to the said letter, the Secretary, Arunachal Pradesh Legislative Assembly vide his letter dated 08.12.2015 informed the Secretary to the Governor about the date of receipt of the notice of the resolution of the Legislative Assembly on 19.11.2015 and that the file was processed and/or was under consideration of the Speaker. By Annexure-VIII note dated 08.12.2015, the ADC to the Governor endorsed the following to the Governor:-
"N O T E Today dated 8 th Dec'2015, I had gone to L/ Assem bly secretariat, N aharlagun and m eet the Secretary, Addll. Secretary, OSD to speaker, under secretary and section officer. I have apprised them about the letter issued from Governor's Secretariat to Secretary A.P. Legislative Assem bly, N aharlagun regarding the notice of resolution for rem oval of speaker and Page 55 of 103 deputy speaker. I t is learned that the said file is at the official residence of Hon'ble Speaker at I tanagar.
Further it is learned that Hon'ble Speaker is on tour in his hom e constituency. He is likely to return late night today.
For inform ation please.
Sd/ - I llegible 8/ 12/ 15 (Tage Habung) SP ADC to Governor"
[35] In reference to the above, it is the specific case of the Governor that neither the Office of the Speaker nor any other authority had informed the Office of the Governor about the notice for resolution of removal of the Deputy Speaker at any point of time. Referring to the documents annexed to the writ petition, it has also been contended that even in the writ petition no copy of such notice has been annexed. Having not received any communication from the Office of the Speaker of Arunachal Pradesh Legislative Assembly and also finding that no action has been initiated from his end, the Governor of Arunachal Pradesh obtained the opinion from legal remunerates. According to the Governor, there was an attempt on the part of the Office of the Speaker to subvert the mandate of the Constitution and it became imperative for the Governor to interfere in the matter by exercising powers conferred by Article 174(1) of the Constitution of India. Accordingly, the impugned speaking order dated 09.12.2015 modifying the summons already issued and summoning (preponing) the 6th Arunachal Pradesh Legislative Assembly was passed exercising the power under Article 174(1) of the Constitution of India. For a ready reference, the said impugned order dated 09.12.2015 is reproduced below:-
"ORDER M ODI FYI N G THE SUM M ON S ALREADY I SSUED M em o N o.N O.GS/ I -115/ 00 (Vol-I I ) I tanagar, the 9 th Decem ber, 2015 W HEREAS I , Jyoti Prasad Rajkhow a, the Governor of Arunachal Pradesh, had issued an Order on 3 N ovem ber, 2015 under clause (1) of article 174 of the Constitution of I ndia sum m oning the Sixth Legislative Assem bly of Arunachal Pradesh to m eet for its sixth session at 10.00 AM on 14 January, Page 56 of 103 2016 in the Legislative Assem bly Cham ber at N aharlagun:
W HEREAS subsequent to the issue of the aforesaid order by m e, a notice of resolution for rem oval of Shri N abam Rebia, from the office of the Speaker of the Arunachal Pradesh Legislative Assem bly has been received on 19 N ovem ber, 2015 w ith a copy endorsed to m e by the notice givers nam ely Shri Tam iyo Taga, the Leader of Opposition in the said Assem bly along w ith 12 other M em bers of the Legislative Assem bly:
W HEREAS the notice of resolution for rem oval of the Speaker as aforesaid has com plied w ith the notice period of 14 days on the 4 Decem ber, 2015 (excluding the day of notice and 4 Decem ber, 2015 - 14 days clear notice) as required under the first proviso to article 179(c) of the Constitution of I ndia:
W HEREAS it has been judicially held in N ipam acha Singh and Others. Vs. Secretary, M anipur Legislative Assem bly and Others [AI R 2002 Gauhati 7] as under :
"13... the pow ers to consider or to reject a m otion for rem oval of the Speaker from his office did not vest in the Speaker but in the Legislative Assem bly under article 179 and 181 of the Constitution..."
W HEREAS in view of the above judicial order, it is a Constitutional obligation on m y part to ensure that the resolution for rem oval of Speaker is expeditiously placed before the Legislative Assem bly:
W HEREAS I have also received a request from the notice givers of the resolution for rem oval of the Speaker that the sitting of the sixth session of the Sixth Arunachal Pradesh Legislative Assem bly originally slated for 14 January, 2016 m ay be advanced so as to enable the House to urgently consider the resolution for rem oval of the Speaker:
W hereas the tim e gap betw een the 4 Decem ber, 2015 and the intended date of first sitting of the sixth session i.e. 14 January, 2016 i.e. the earliest date on w hich the resolutions for rem oval of Speaker can be taken up for consideration by the House, is 42 days (including 4 Decem ber, 2015 and 14 January, 2016):
W HEREAS any such notice of resolution in relation to an Officer of the Legislative Assem bly (Speaker or Deputy Speaker) needs to be expeditiously considered by the Legislative Assem bly in view of (i) past precedents in the Lok Sabha and (ii) the seriousness and urgency accorded to such resolutions in paragraph 2 of Rule 151 of the Rules of Procedure and Conduct of Business in the Arunachal Pradesh Legislative Assem bly and (iii) the utm ost im m ediacy w ith w hich the cloud cast by the notice of resolution over the continuance of the incum bent in the office of the Speaker has to be cleared:
W HEREAS I am personally satisfied that the tim e gap betw een the date of com pliance of the notice w ith the notice period prescribed in the first proviso to article 179(c) of the Constitution of I ndia and the date of the intended first sitting of the ensuing session, as com puted in the aforesaid m anner, is long and unreasonable and m ay cause dam age to the goals and ideals of provisions in the constitution of I ndia and the Rules of Procedure of the House concerning speedy disposal of such resolutions:Page 57 of 103
W HEREAS I am further satisfied that, for any exercise of advancing the date of the sixth session under clause (1) of article 174 of the Constitution of I ndia to a date earlier than the date m entioned in the sum m ons dated 3 rd N ovem ber, 2015 for facilitating the House to expeditiously consider resolutions for rem oval of Speaker, I m ay not be bound by the advice of the Council of M inisters, since the subject m atter of the notice for rem oval of the Speaker is not a m atter falling under the executive jurisdiction of the Chief M inister, Arunachal Pradesh nor such a subject m atter finds a m ention in the Rules of Executive Business of the Governm ent of Arunachal Pradesh fram ed under article 166 of the Constitution of I ndia thereby restricting the role of the Chief M inister in advising m e in exercise of m y pow ers under article 174(1) of the Constitution of I ndia only to m atters for w hich the Chief M inister, under the Constitution of I ndia, is responsible:
AN D N OW THEREFORE, -
I n exercise of pow ers conferred upon m e by clause (1) of article 174 of the Constitution of I ndia, I , Jyoti Prasad Rajkhow a, Governor of Arunachal Pradesh do hereby m odify the order issued by m e under the said provision of the Constitution of I ndia on 3 rd N ovem ber, 2015 sum m oning the Sixth Arunachal Pradesh Legislative Assem bly to m eet for its sixth session on 14th January, 2016 to the follow ing extent:
(i) For '14th January, 2016' read '16 th Decem ber, 2015'
(ii) For '18 th January, 2016' read '18 th Decem ber, 2015'
2. Accordingly, in pursuance of the order issued by m e under clause (1) of article 174 of the Constitution of I ndia on 3 rd N ovem ber, 2015 as m odified herein, the Arunachal Pradesh Legislative Assem bly shall now m eet at 10.00 AM on 16 th Decem ber, 2015 at the Legislative Assem bly Cham ber at N aharlagun.
Sd/ - I llegible (Jyoti Prasad Rajkhow a) Governor"
1. The impugned message dated 09.12.2015 is also reproduced below:-
"M ESSAGE UN DER ARTI CLE 175(2) OF THE CON STI TUTI ON OF I N DI A M em o N o.GS/ I -115/ 00(Vol-I I ) I tanagar, the 9 th Decem ber, 2015 'I n exercise of pow ers conferred upon m e by clause (2) of article 175 of the Constitution of I ndia, I Jyoti Prasad Rajk how a, the Governor of Arunachal Pradesh, hereby send the follow ing m essage to the sixth Arunachal Pradesh Legislative Assem bly m eeting for its sixth session com m encing from the 16 th Decem ber, 2015:Page 58 of 103
1. The resolution for rem oval of the Speaker shall be the first item on the agenda of the House at the first sitting of the Sixth Session of the Sixth Arunachal Pradesh Legislative Assem bly;
2. As the resolution for rem oval of the Speaker shall be the first item of business at the first sitting of the Sixth Session of the Sixth Arunachal Pradesh Legislative Assem bly, the Deputy Speaker shall preside over the House from the first m om ent of the first sitting of the House in accordance w ith provisions in article 181(1) of the Constitution of I ndia;
3. The proceedings of the House on the leave, discussion and voting on the resolution for rem oval of the Speaker shall be com pleted at the first sitting of the session itself;
4. The Deputy Speaker shall conduct the proceedings peacefully and truthfully and shall com m unicate the results of the voting on the resolution on the sam e day. The proceedings of the House on the resolution shall be videographed and an authenticated copy of the video record shall also be sent to m e on the sam e day; and
5. Until the session is prorogued, no Presiding Officer shall alter the party com position in the House.' Sd/ - I llegible (JYOTI PRASAD RAJKHOW A) GOVERN OR"
[36] Above are all factual aspects of the matter. The crux of the matter is as to whether the Governor's decision to prepone the Assembly Session exercising the power under Article 174(1) of the Constitution of India and also to issue message under Article 175(2) of the Constitution of India fixing the resolution for removal of the Speaker as the 1st Item of Agenda are vitiated being opposed to the Constitutional provisions. While according to the petitioners, the Governor is not empowered to prepone the Assembly Session without the aid and advice of the Council of Ministers and also not entitled to issue such message, according to the respondents, the Governor exercised his power under Articles 174(1) and 175(2) of the Constitution of India in the peculiar fact situation and the same was within his competence and jurisdiction falling within the exception in which he is required to apply his discretion.
Page 59 of 103[37] To appreciate the above background facts and the argument advanced by the rival parties, let us now refer to the relevant constitutional provisions enumerated below, which will speak for themselves:-
"153. Governors of States - There shall be a Governor for each State:
[Provided that nothing in this article shall prevent the appointm ent of the sam e person as Governor for tw o or m ore States.]
154. Executive pow er of State - (1) The executive pow er of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance w ith this Constitution.
(2) N othing in this article shall--
(a) be deem ed to transfer to the Governor any functions conferred by any existing law on any other authority; or
(b) prevent Parliam ent or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.
160. Discharge of the functions of the Governor in certain contingencies - The President m ay m ake such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter.
163. Council of M inisters to aid and advise Governor - (1) There shall be a Council of M inisters w ith the Chief M inister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) I f any question arises w hether any m atter is or is not a m atter as respects w hich the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion 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.
(3) The question w hether any, and if so w hat, advice w as tendered by M inisters to the Governor shall not be inquired into in any Court.
166. Conduct of business of the Governm ent of a State - (1) All executive action of the Governm ent of a State shall be expressed to be taken in the nam e of the Governor.
Page 60 of 103(2) Orders and other instrum ents m ade and executed in the nam e of the Governor shall be authenticated in such m anner as m ay be specified in rules to be m ade by the Governor, and the validity of an order or instrum ent w hich is so authenticated shall not be called in question on the ground that it is not an order or instrum ent m ade or executed by the Governor.
(3) The Governor shall m ake rules for the m ore convenient transaction of the business of the Governm ent of the State, and for the allocation am ong M inisters of the said business in so far as it is not business w ith respect to w hich the Governor is by or under this Constitution required to act in his discretion.
168. Constitution of Legislatures in States - (1) For every State there shall be a Legislature w hich shall consist of the Governor, and--
(a) in the States of [Andhra Pradesh,] Bihar, [M aharashtra], [Karnataka], [Tam il N ade] [and Uttar Pradesh], tw o Houses;
(b) in other States, one House.
(2) W here there are tw o Houses of the Legislature of a State, one shall be know n as the Legislative Council and the other as the Legislative Assem bly, and w here there is only one House, it shall be know n as the Legislative Assem bly.
174. Sessions of the State Legislature, prorogation and dissolution - (1) The Governor shall from tim e to tim e sum m on the House or each House of the Legislature of the State to m eet at such tim e and place as he thinks fit, but six m onths shall not intervene betw een its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The Governor m ay from tim e to tim e--
(a) prorogue the House or either House;
(b) dissolve the Legislative Assem bly.
175. Right of Governor to address and send m essages to the House or Houses - (1) The Governor m ay address the Legislative Assem bly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assem bled together, and m ay for that purpose require the attendance of m em bers.
(2) The Governor m ay send m essages to the House or Houses of the Legislature of the State, w hether w ith respect to a Bill then pending in the Legislature or otherw ise, and a House to w hich any m essage is so sent shall w ith all convenient despatch consider any m atter required by the m essage to be taken into consideration.
Page 61 of 103178. The Speaker and Deputy Speaker of the Legislative Assem bly - Every Legislative Assem bly of a State shall, as soon as m ay be, choose tw o m em bers of the Assem bly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becom es vacant, the Assem bly shall choose another m em ber to be Speaker or Deputy Speaker, as the case m ay be.
179. Vacation and resignation of, and rem oval from , the offices of Speaker and Deputy Speaker - A m em ber holding office as Speaker or Deputy Speaker of an Assem bly--
(a) shall vacate his office if he ceases to be a m em ber of the Assem bly;
(b) m ay at any tim e by w riting under his hand addressed, if such m em ber is the Speaker, to the Deputy Speaker, and if such m em ber is the Deputy Speaker, to the Speaker, resign his office; and
(c) m ay be rem oved from his office by a resolution of the Assem bly passed by a m ajority of all the then m em bers of the Assem bly:
Provided that no resolution for the purpose of clause (c) shall be m oved unless at least fourteen days' notice has been given of the intention to m ove the resolution:
Provided further that, w henever the Assem bly is dissolved, the Speaker shall not vacate his office until im m ediately before the first m eeting of the Assem bly after the dissolution.
180. Pow er of the Deputy Speaker or other person to perform the duties of the office of, or to act as, Speaker - (1) W hile the office of Speaker is vacant, the duties of the office shall be perform ed by the Deputy Speaker or, if the office of Deputy Speaker is also vacant, by such m em ber of the Assem bly as the Governor m ay appoint for the purpose.
181. The Speaker or the Deputy Speaker not to preside w hile a resolution for his rem oval from office is under consideration - (1) At any sitting of the Legislative Assem bly, w hile any resolution for the rem oval of the Speaker from his office is under consideration, the Speaker, or w hile any resolution for the rem oval of the Deputy Speaker, from his office is under consideration, the Deputy Speaker, shall not, though he is present, preside, and the provisions of clause (2) of article 180 shall apply in relation to every such sitting as they apply in relation to a sitting from w hich the Speaker or, as the case m ay be, the Deputy Speaker, is absent.
(2) The Speaker shall have the right to speak in, and otherw ise to take part in the proceedings of, the Legislative Assem bly w hile any resolution for his rem oval from office is under consideration in the Assem bly and shall, Page 62 of 103 notw ithstanding anything in article 189, be entitled to vote only in the first instance on such resolution or on any other m atter during such proceedings but not in the case of an equality of votes.
189. Voting in Houses, pow er of Houses to act notw ithstanding vacancies and quorum - (1) Save as otherw ise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determ ined by a m ajority of votes of the m em bers present and voting, other than the Speaker or Chairm an, or person acting as such.
The Speaker or Chairm an, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.
(2) A House of the Legislature of a State shall have pow er to act notw ithstanding any vacancy in the m em bership thereof, and any proceedings in the Legislature of a State shall be valid notw ithstanding that it is discovered subsequently that som e person w ho w as not entitled so to do sat or voted or otherw ise took part in the proceedings.
(3) Until the Legislature of the State by law otherw ise provides, the quorum to constitute a m eeting of a House of the Legislature of a State shall be ten m em bers or one-tenth of the total num ber of m em bers of the House, w hichever is greater.
(4) I f at any tim e during a m eeting of the Legislative Assem bly or the Legislative Council of a State there is no quorum , it shall be the duty of the Speaker or Chairm an, or person acting as such, either to adjourn the House or to suspend the m eeting until there is a quorum .
191. Disqualifications for m em bership - (1) A person shall be disqualified for being chosen as, and for being, a m em ber of the Legislative Assem bly or Legislative Council of a State -
(a) if he holds any office of profit under the Governm ent of I ndia or the Governm ent of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound m ind and stands so declared by a com petent Court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of I ndia, or has voluntarily acquired the citizenship of a foreign State, or is under any acknow ledgm ent of allegiance or adherence to a foreign State;
Page 63 of 103(e) if he is so disqualified by or under any law m ade by Parliam ent.
[Explanation - For the purposes of this clause], a person shall not be deem ed to hold an office of profit under the Governm ent of I ndia or the Governm ent of any State specified in the First Schedule by reason only that he is a M inister either for the Union or for such State.
[(2) A person shall be disqualified for being a m em ber of the Legislative Assem bly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.]
208. Rules of procedure - (1) A House of the Legislature of a State m ay m ake rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.
(2) Until rules are m ade under clause (1), the rules of procedure and standing orders in force im m ediately before the com m encem ent of this Constitution w ith respect to the Legislature for the corresponding Province shall have effect in relation to the Legislature of the State subject to such m odifications and adaptations as m ay be m ade therein by the Speaker of the Legislative Assem bly, or the Chairm an of the Legislative Council, as the case m ay be.
(3) I n a State having a Legislative Council the Governor, after consultation w ith the Speaker of the Legislative Assem bly and the Chairm an of the Legislative Council, m ay m ake rules as to the procedure w ith respect to com m unications betw een the tw o Houses.
212. Courts not to inquire into proceedings of the Legislature - (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) N o officer or m em ber of the Legislature of a State in w hom pow ers are vested by or under this Constitution for regulating procedure or the conduct of business, or for m aintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those pow ers.
361. Protection of President and Governors and Rajpram ukhs - (1) The President, or the Governor or Rajpram ukh of a State, shall not be answ erable to any Court for the exercise and perform ance of the pow ers and duties of his office or for any act done or purporting to be done by him in the exercise and perform ance of those pow ers and duties:
Provided that the conduct of the President m ay be brought under review by any Court, tribunal or body appointed or designated by either House of Parliam ent for the investigation of a charge under article 61:Page 64 of 103
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Governm ent of I ndia or the Governm ent of a State.
(2) N o crim inal proceedings w hatsoever shall be instituted or continued against the President, or the Governor of a State, in any Court during his term of office.
(3) N o process for the arrest or im prisonm ent of the President, or the Governor of a State, shall issue from any Court during his term of office.
(4) N o civil proceedings in w hich relief is claim ed against the President, or the Governor of a State, shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity, w hether before or after he entered upon his office as President, or as Governor of such State, until the expiration of tw o m onths next after notice in w riting has been delivered to the President or the Governor, as the case m ay be, or left at his office stating the nature of the proceedings, the cause of action therefor, the nam e, description and place of residence of the party by w hom such proceedings are to be instituted and the relief w hich he claim s."
[38] The learned counsel for the parties have referred to the decisions referred to above in reference to the constitutional provisions. It is in the backdrop of the aforesaid fact situation, which has emerged from the pleadings, the basic issue in reference to and the other issues involved are required to be answered. Let me now discuss the decisions. Needless to say that ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsburry in Quinn -Vs- Leathem , 1901 AC 495 ).
[39] As has been held by the Apex Court in CIT -Vs- Sun Engg. W orks (P) Ltd. reported in 1992 (4) SCC 363 , it is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Page 65 of 103 Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings (see para
39)."
[40] In Sam sher Singh (supra) to which the learned counsel for the parties have extensively referred to, the Apex Court was concerned with the functions of the President or Governor based on his satisfaction whether to be discharged by him personally applying his mind to facts of the situation. That was a case relating to termination of services of the 2(two) appellants, who were members of the Punjab Civil Services (Judicial Branch) and were appointed on probation. Dismissal order was issued under Article 234 and was met by the Chief Minister of the State in the name of the Governor but without seeking or obtaining his personal satisfaction. It was held that there was no infirmity in the impugned orders on the score that the Governor had not himself perused the papers or passed the orders. While the learned counsel for the respondents referred to Paragraphs 11, 54, 55 & 154 of the judgment, the learned counsel representing the writ petitioner referred to Paragraphs 18; 27; 54; 55; 56; 57; 142 & 154 of the said judgment. For a ready reference, the said paragraphs are reproduced below:
"11. Third, the aid and advice of the Council of M inisters under Article 163 is different from the allocation of business of the governm ent of the State by the Governor to the Council of M inisters under Article 166(3) of the Constitution. The allocation of business of governm ent under Article 166(3) is an instance of exercise of executive pow er by the Governor through his Council by allocating or delegating his functions. The aid and advice is a constitutional restriction on the exercise of executive pow ers of the State by the Governor. The Governor w ill not be constitutionally com petent to exercise these executive pow ers of the State w ithout the aid and advice of the Council of M inisters.
18. Article 143 in the Draft Constitution becam e Article 163 in the Constitution. The Draft Constitution in Article 144(6) said that the functions of Page 66 of 103 the Governor under that article w ith respect to the appointm ent and dism issal of M inisters shall be exercised by him in his discretion. Draft Article 144(6) w as totally om itted w hen Article 144 becam e Article 164 in the Constitution. Again Draft Article 153(3) said that the functions of the Governor under clauses (a) and
(c) of clause (2) of the article shall be exercised by him in his discretion. Draft Article 153(3) w as totally om itted w hen it becam e Article 174 of our Constitution. Draft Article 175 (proviso) said that the Governor 'm ay in his discretion return the Bill together w ith a m essage requesting that the House w ill reconsider the Bill'. Those w ords that 'the Governor m ay in his discretion' w ere om itted w hen it becam e Article 200. The Governor under Article 200 m ay return the Bill together w ith a m essage requesting that the House w ill reconsider the Bill. Draft Article 188 dealt w ith provisions in case of grave em ergencies. Clauses (1) and (4) in Draft Article 188 used the w ords 'in his discretion' in relation to exercise of pow er by the Governor. Draft Article 188 w as totally om itted. Draft Article 285(l) and (2) dealing w ith com position and staff of Public Service Com m ission used the expression 'in his discretion' in relation to exercise of pow er by the Governor in regard to appointm ent of the Chairm an and M em bers and m aking of regulation. The w ords 'in his discretion' in re1ation to exercise of pow er by the Governor w ere om itted w hen it becam e Article 316. I n Paragraph 15(3) of the Sixth Schedule dealing w ith annulm ent or suspension of Acts or suspension of Acts and resolutions of District and R egional Councils it w as said that the functions of the Governor under the paragraph shall be exercised by him in his discretion. Sub-paragraph 3 of paragraph 15 of the Sixth Schedule w as om itted at the tim e of enactm ent of the Constitution.
27. Our Constitution em bodies generally the Parliam entary or Cabinet system of Governm ent of the British m odel both for the Union and the States. Under this system the President is the constitutional or form al head of the Union and he exercises his pow ers and functions conferred on him by or under the Constitution on the aid and advice of his Council of M inisters. Article 103 is an exception to the aid and advice of the Council of M inisters because it specifically provides that the President acts only according to the opinion of the Election Com m ission. This is w hen any question arises as to w hether a M em ber of either House of Parliam ent has becom e subject to any of the disqualifications m entioned in clause (1) of Article 102.
54. The provisions of the Constitution w hich expressly require the Governor to exercise his pow ers in his discretion are contained in articles to w hich reference has been m ade. To illustrate, Article 239(2) states that w here a Governor is appointed an adm inistrator of an adjoining Union territory he shall exercise his functions as such adm inistrator independently of his Council of M inisters. The other articles w hich speak of the discretion of the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule and Articles 371A(1)(b), 371A(1)(d) and 371A(2)(b) and 371A(2)(f). The discretion conferred on the Governor m eans that as the constitutional or form al head of the State the pow er is vested in him . I n this connection, reference m ay be m ade to Artic1e 356 w hich Page 67 of 103 states that the Governor can send a report to the President that a situation has arisen in w hich the governm ent of the State cannot be carried on in accordance w ith the provisions of this Constitution. Again Article 200 requires the Governor to reserve for consideration any Bill w hich in his opinion if it becam e law , w ould so derogate from the pow ers of the High Court as to endanger the position w hich the High Court is designed to fill under the Constitution.
55. I n m aking a report under Article 356 the Governor w ill be justified in exercising his discretion even against the aid and advice of his Council of M inisters. The reason is that the failure of the constitutional m achinery m ay be because of the conduct of the Council of M inisters. This discretionary pow er is given to the Governor to enable him to report to the President w ho, how ever, m ust act on the advice of his Council of M inisters in all m atters. I n this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different m atter. The President acts on the advice of his Council of M inisters. I n all other m atters w here the Governor acts in his discretion he w ill act in harm ony w ith his Council of M inisters. The Constitution does not aim at providing a parallel adm inistration w ithin the State by allow ing the Governor to go against the advice of the Council of M inisters.
56. Sim ilarly Article 200 indicates another instance w here the Governor m ay act irrespective of any advice from the Council of M inisters. I n such m atters w here the Governor is to ex ercise his discretion he m ust discharge his duties to the best of his judgm ent. The Governor is required to pursue such courses w hich are not detrim ental to the State.
57. For the foregoing reasons w e hold that the President or the Governor acts on the aid and advice of the Council of M inisters w ith the Prim e M inister at the head in the case of the Union and the Chief M inister at the head in the case of State in all m atters w hich vests in the Executive w hether those functions are executive or legislative in character. N either the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointm ent of persons other than District Judges to the Judicial Services of the State w hich is to be m ade by the Governor as contem plated in Article 234 of Constitution after consultation w ith the State Punjab Service Com m ission and the High Court. Appointm ent or dism issal or rem oval of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance w ith the rules in that behalf under the Constitution.
142. Sim ilarly, the President is entrusted w ith pow ers and duties covering a w ide range by the articles of the Constitution. I ndeed, he is the Suprem e Com m ander of the Arm ed Forces [Article 53(2)], appoints Judges of the Suprem e Court and the High Courts and determ ines the latter's age w hen dispute arises, has pow er to refer questions for the advisory opinion of the Suprem e Court, (Article 143) and has pow er to hold that governm ent of a State cannot be carried Page 68 of 103 in accordance w ith the Constitution (Article 356). The Auditor-General, the Attorney-General, the Governors and the entire arm y of public servants hold office during the pleasure of the President. Bills cannot becom e law , even if passed by Parliam ent, w ithout the assent of the President. Recognising and derecognising Rulers of form er native States of I ndia is a pow er vested in the President. The extraordinary pow ers of legislation by ordinances, dispensing w ith enquiries against public servants before dism issal, declaration of em ergency and im position of President's rule by proclam ation upon States, are vast pow ers of profound significance. Indeed, even the pow er of sum m oning and proroguing and dissolving the House of the People and returning Bills passed by the Parliam ent belongs to him . I f only w e expand the ratio of Sardari Lal (supra) and Jayantilal (supra) to every function w hich the various articles of the Constitution confer on the President or the Governor, Parliam entary dem ocracy w ill becom e a dope and national elections a num erical exercise in expensive futility. W e w ill be com pelled to hold that there are tw o parallel authorities, exercising pow ers of governance of the country, as in the dyarchy days, except that W hitehall is substituted by Rashtrapati Bhavan and Raj Bhavan. The Cabinet w ill shrink at Union and State levels in political and adm inistrative authority and, having solem n regard to the gam ut of his pow ers and responsibilities, the Head of State w ill be reincarnation of Her M ajesty's Secretary of State for I ndia, untroubled by even the British Parliam ent - a little taller in pow er than the Am erican President. Such a distortion, by interpretation, it appears to us, w ould virtually am ount to a subversion of the structure, substance and vitality of our Republic, particularly w hen w e rem em ber that Governors are but appointed functionaries and the President him self is elected on a lim ited indirect basis. As w e have already indicated, the overw helm ing catena of authorities of this Court have established over the decades that the cabinet form of Governm ent and the Parliam entary system have been adopted in I ndia and the contrary concept m ust be rejected as incredibly allergic to our political genius, constitutional creed and culture.
154. W e declare the law of this branch of our Constitution to be at the President and Governor, custodians of all executive and other pow ers under various articles shall, by virtue of these provisions, exercise their form al constitutional pow ers only upon and in accordance w ith the advice of their M inisters save in a few w ell-know n exceptional situations. W ithout being dogm atic or exhaustive, these situations relate to (a) the choice of Prim e M inister (Chief M inister), restricted though this choice is by the param ount consideration that he should com m and a m ajority in the House; (b) the dism issal of a Governm ent w hich has lost its m ajority in the House, but refuses to quit office; (c) the dissolution of the House w here an appeal to the country is necessitous, although in this area the head of State should avoid getting involved in politics and m ust be advised by his Prim e M inister (Chief M inister) w ho w ill eventually take the responsibility for the step. W e do not exam ine in detail the constitutional proprieties in these predicam ents except to utter the caution that even here the action m ust be com pelled by the peril to dem ocracy and the appeal to the House or to the country m ust becom e blatantly obligatory. W e have no Page 69 of 103 doubt that de Sm ith's statem ent' regarding royal assent holds good for the President and Governor in I ndia:
Refusal of the royal assent on the ground that the M onarch strongly disapproved of a Bill or that it w as intensely controversial w ould nevertheless be unconstitutional. The only circum stances in w hich the w ithholding of the royal assent m ight be justifiable w ould be if the Governm ent itself w ere to advise such a course - a highly im probable contingency - or possible if it w as notorious that a Bill had been passed in disregard to m andatory procedural requirem ents; but since the Governm ent in the latter situation w ould be of the opinion that the deviation w ould not affect the validity of the m easures once it had been assented to, prudence w ould suggest the giving of assent."
[41] While Mr. Choudhury, learned counsel for the writ petitioner emphasized on the need for the Governor to act as per the aid and advice of the Council of Ministers, the learned counsel representing the respondents emphasized on the exceptional circumstances in which the Governor of a State is entitled to exercise his discretion as per the demand of the situation. As enumerated in Paragraph 154 of the aforesaid judgment, although the President and the Governor, custodians of all executive and other powers under various Articles shall, by virtue of those provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers but there can be exceptional situations. As spelt out in the said paragraph itself, situations referred to are not exhaustive but illustrative.
[42] This aspect of the matter was reiterated in M .P. Special Police Establishm ent (supra) when it was held that though normal rule is that Governor acts on aid and advice of Council of Ministers and not independently or contrary to it but there are exceptions under which the Governor can act in his own discretion. It was held that exceptions referred to in Sam sher Singh (supra) are not exhaustive.
[43] In this case referring to the decisions in State of M aharashtra Vs. R am das Shrinivas Nayak reported in (1982) 2 SCC 463 and Bhuri Nath Vs. State of Jammu & Kashmir reported in (1997 ) 2 SCC 745 , the Apex Court recorded the exceptions, which were accepted to be within the domain of the discretion of the Governor. In this case, the question for consideration was whether a Page 70 of 103 Governor can act in his discretion and against the aid and advice of the Council of Ministers in matter of grant of sanction for prosecution of Ministers for offence under the Prevention of Corruption Act and/or under the Indian Penal Code. Referring to the provisions of Article 163, extracted above, the Apex Court held that undoubtedly in a matter of grant of sanction to prosecute, the Governor is normally required to act on aid and advice of the Council of Ministers and not in his discretion. However, an exception may arise whilst considering grant of sanction to prosecute a Chief Minister or Minister where as a matter of propriety the Governor may have to act in his own discretion. Similar would be the situation if the Council of Ministers disables itself or disentitles itself.
[44] In this case, the Council of Ministers had declined to grant sanction for prosecution of Ministers but the Governor in his discretion granted the prosecution sanction, the Apex Court upholding the action of the Governor observed and held thus:
"30. I t is w ell settled that the exercise of adm inistrative pow er w ill stand vitiated if there is a m anifest error of record or the exercise of pow er is arbitrary. Sim ilarly, if the pow er has been exercised on the non-consideration or non-application of m ind to relevant factors the exercise of pow er w ill be regarded as m anifestly erroneous.
31. W e have, on the prem ises aforem entioned, no hesitation to hold the decision of the Council of M inisters w as ex facie irrational w hereas the decision of the Governor w as not. I n a situation of this nature, the w rit court w hile exercising its jurisdiction under Art6icle 226 of the Constitution as also this Court under Articles 136 and 142 of the Constitution can pass an appropriate order w hich w ould do com plete justice to the parties. The High Court unfortunately failed to consider this aspect of the m atter.
32. I f, on these facts and circum stances, the Governor cannot act in his ow n discretion there w ould be a com plete breakdow n of the rule of law inasm uch as it w ould then be open for Governm ents to refuse sanction in spite of overw helm ing m aterial show ing that a prim a facie case is m ade out. I f, in cases w here a prim a facie case is clearly m ade out, sanction to prosecute high functionaries is refused or w ithheld, dem ocracy itself w ill be at stake. I t w ould then lead to a situation w here people in pow er m ay break the law w ith im punity safe in the know ledge that they w ill not be prosecuted as the requisite sanction w ill not be granted ."
[45] Again in R am eshw ar Prasad (supra) dealing with the subjective satisfaction of the President under Article 356 for issue of proclamation and the Page 71 of 103 conditions precedent vis-à-vis the scope of judicial review, it was held that the Court will not lightly presume abuse or misuse of power and will make allowance for fact that the decision making authority is best judge of the situation. Unless the satisfaction derived in arriving at a particular decision is based on wholly extraneous and irrelevant grounds invocation of the power of judicial review under Article 226 of the Constitution will not be available.
[46] It will also have to be borne in mind that the common thread running through various decisions of the Apex Court is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case [Associated Provincial Picture House Lim ited -Vs- W ednesbury Corpn. - (1948) 1 K B 223: 1947 (2) All ER 680 (CA)], the Court would not go into the correctness of the choice made by the Administrator open to him and the Court should not substitute its decision to that of the Administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.
[47] In paragraph 249 of the aforesaid judgment, dealing with the allegation of malafide in reference to the sufficiency or the correctness of the factual position indicated in the particular report, it was observed thus:-
"249. Allegation of m ala fides w ithout any supportable basis is the last feeble attem pt of a losing litigant, otherw ise it w ill create a sm okescreen on the scope of judicial review . This is a pivotal issue around w hich the fate of this case revolves. As w as noted in A.K . Kaul case the satisfaction of the P resident is justiciable. I t w ould be open to challenge on the ground of m ala fides or being based w holly on extraneous or irrelevant grounds. The sufficiency or the correctness of the factual position indicated in the report is not open to judicial review . The truth or correctness of the m aterials cannot be questioned by the Court nor w ould it go into the adequacy of the m aterial and it w ould also not substitute its opinion for that of the President. I nterference is called for only w hen there is clear case of abuse of pow er or w hat is som etim es called fraud on pow er. The Court w ill not lightly, presum e abuse or m isuse of pow er and w ill m ake allow ance for the fact that the Page 72 of 103 decision-m aking authority is the best judge of the situation. I f the Governor w ould have form ed his opinion for dissolution w ith the sole objective of preventing som ebody from staking a claim , it w ould clearly be extraneous and irrational. The question w hether such person w ould be in a position to form a stable Governm ent is essentially the subjective opinion of the Governor; of course to be based on objective m aterials. The basic issue therefore is, did the Governor act on extraneous and irrelevant m aterials for com ing to the conclusion that there w as no possibility of a stable Governm ent."
[48] The well recognized position in law is that purity in the electoral process and the conduct of the elected representatives cannot be isolated from the constitutional requirements. "Democracy" and "free and fair election" are irreparable twins. The constitutional duty of the Governor is to safeguard the course of fairness and purity and not to throw up his hands in abject helplessness.
[49] In Justice R .A. M ehta (Retd.) & Ors. (supra), the Apex Court dealing with the independent/discretionary power of the Governor in reference to Article 163 of the Constitution of India referring to the decision in M .P. Special Police Establishm ent (supra) held that in exceptional circumstances, the Governor may be justified in acting upon his/her own discretion. The manner in which the Governor is to act has been discussed in Paragraphs 33 to 57 of the said judgment, which are quoted below:-
"33. I n Sam sher Singh v. State of Punjab, this Court expounded the universal rule that the Governor is bound to act only in accordance w ith the aid and advice of the Council of M inisters headed by the Chief M inister. The Rules of Business and allocation of business am ong the M inisters related to the provisions of Article 53 in the case of the President and Article 154 in the case of the Governor state that executive pow er in connection w ith the sam e shall be exercised by the President or the Governor either directly or through subordinate officers. The President is the form al or Constitutional head of the Executive. The real executive pow ers, how ever, are vested in the M inisters of the Cabinet. W herever the Constitution requires the satisfaction of the President or the Governor, for the purpose of exercise by the President or the Governor any pow er or function, such satisfaction is not the personal satisfaction of the President or of the Governor in their personal capacity but the satisfaction of the President or Governor in the constitutional sense as contem plated in a Cabinet system of governm ent, that is, the satisfaction of the Page 73 of 103 Council of M inisters, on w hose aid and advice the President or the Governor generally exercise all their pow ers and functions. The President of I ndia is not a glorified cipher. He represents the m ajesty of the State, and is at its apex, though only sym bolically, and has a different rapport w ith the people and parties alike, being above politics. His vigilant presence m akes for good governance if only he uses, w hat Bagehot described as, 'the right to be consulted, to w arn and to encourage".
34. W henever the Constitution intends to confer discretionary pow ers upon the Governor or to perm it him to exercise his individual judgm ent, it has done so expressly. For this purpose, the provisions of 'Articles 200, 239(2), 371- A(1)(b), 371-A(1)(a), 371-A(2)(b) and 371-A(2)(f), Schedule VI , Para 9(2) [and Schedule VI Para 18(3), until om itted w ith effect from January 21-1-1972], m ay be referred to. Thus, discretionary pow ers exist only w here they are expressly spelt out.
35. How ever, the pow er to grant pardon or to rem it sentence (Article
161), the pow er to m ake appointm ents including that of the Chief M inister (Article 164), the Advocate-General (Article 165), the District Judges (Article
233), the M em bers of the Public Service Com m ission (Article 316) are in the category w here the Governor is bound to act on the aid and advice of the Council of M inisters. Likew ise, the pow er to prorogue either House of Legislature or to dissolve the Legislative Assem bly (Article 174), the right to address or send m essages to the Houses of the Legislature (Article 175 and Article 176), the pow er to assent to Bills or w ithhold such assent (Article 200), the pow er to m ake recom m endations for dem ands of grants [Article 203(3)], and the duty to cause to be laid every year the annual budget (Article 202), the pow er to prom ulgate ordinances during recess of the Legislature (Article 213) also belongs to this species of pow er. Again, the obligation to m ake available to the Election Com m ission, requisite staff for discharging functions conferred upon it by Article 324(1) and Article 324(6), the pow er to nom inate a m em ber of the Anglo-I ndian Com m unity to the Assem bly in certain situations (Article
333), the pow er to authorise the use of Hindi in proceedings in the High Court [Article 348(2)], are illustrative of the functions of the Governor, qua the Governor.
36. The Governor shall act w ith aid and advice of the Council of M inisters, save in a few w ell-know n exceptional situations. W ithout being dogm atic or exhaustive, this situation relates to the choice of the Chief M inister, dism issal of the Governm ent, and dissolution of the House.
37. I n M .P. Special Police Establishm ent v. State of M .P., the question that arose w as w hether for the purpose of grant of sanction for the prosecution of M inisters, for offences under the Prevention of Corruption Act and/ or the I ndian Penal Code, the Governor, w hile granting such sanction, could exercise his ow n discretion or act contrary to the advice rendered to him by the Council of M inisters. The Court, in this regard, first considered the object and purpose of the statutory provisions, w hich are aim ed at achieving the prevention and Page 74 of 103 eradication of acts of corruption by public functionaries. The Court then also considered the provisions of Article 163 of the Constitution, and took into consideration w ith respect to the sam e a large num ber of earlier judgm ents of this Court including Sam sher Singh and State of M aharashtra v. Ram das Shrinivas N ayak and thereafter cam e to the conclusion that in a m atter related to the grant of sanction required to prosecute a public functionary, the Governor is usually required to act in accordance w ith the aid and advice rendered to him by the Council of M inisters, and not upon his ow n discretion. How ever, an exception m ay arise w hile considering the grant of sanction required to prosecute the Chief M inister, or a M inister, w here as a m atter of propriety, the Governor m ay have to act upon his ow n discretion. Sim ilar w ould be the situation in a case w here the Council of M inisters disables or disentitles itself from providing such aid and advice. Such a conclusion by the Court w as found to be necessary for the reason that the facts and circum stances of a case involving any of the aforem entioned fact situations m ay indicate the possibility of bias on the part of the Chief M inister or the Council of M inisters. This Court carved out certain exceptions to the said provision. For instance, w here bias is inherent or apparent, or, w here the decision of the Council of M inisters is w holly irrational, or, w here the Council of M inisters, because of som e incapacity or other situation, is disentitled from giving such advice, or, w here it refrains from doing so as m atter of propriety, or in the case of a com plete breakdow n of dem ocracy.
38. Article 163(2) of the Constitution provides that it w ould be perm issible for the Governor to act w ithout m inisterial advice in certain other situations, depending upon the circum stances therein, even though they m ay not specifically be m entioned in the Constitution as discretionary functions e.g. the exercise of pow er under Article 356(1), as no such advice w ill be available from the Council of M inisters, w ho are responsible for the breakdow n of Constitutional m achinery, or w here one M inistry has resigned, and the other alternative M inistry cannot be form ed. M oreover Clause (2) of Article 163 provides that the Governor him self is the final authority to decide upon the issue of w hether he is required by or under the Constitution, to act in his discretion. The Council of M inisters, therefore, w ould be rendered incom petent in the event of there being a difference of opinion w ith respect to such a question, and such a decision taken by the Governor w ould not be justiciable in any Court. There m ay also be circum stances w here there are m atters w ith respect to w hich the Constitution does not specifically require the Governor to act in his discretion but the Governor, despite this, m ay be fully justified to act so e.g. the Council of M inisters m ay advise the Governor to dissolve a House, w hich m ay be detrim ental to the interests of the nation. I n such circum stances, the Governor w ould be justified in refusing to accept the advice rendered to him and act in his discretion. There m ay even be circum stances w here m inisterial advice is not available at all i.e. the decision regarding the choice of Chief M inister under Article 164(1) w hich involves choosing a Chief M inister after a fresh election, or in the event of the death or resignation of the Chief M inister, or dism issal of the Chief M inister w ho loses m ajority in the House and yet refuses to resign or agree to dissolution. The Governor is further not required to act on the advice of the Council of M inisters w here som e other body has been Page 75 of 103 referred for the purpose of consultation i.e. Article 192(2) as regards decisions on questions related to the disqualification of m em bers of the State Legislature.
39. I n Brundaban N ayak v. Election Com m ission of I ndia reported in AI R 1965 SC 1892, this Court held that w hile dealing w ith a case under Article 192 of the Constitution, the Governor m ust act in accordance w ith advice of the Election Com m ission, and that he does not require any aid or advice from the Council of M inisters. (See also: Election Com m ission of I ndia v. Dr. Subram anian Sw am y reported in AI R 1996 SC 1810).
40. The issue of prim acy of the Chief Justice in such cases, has also been considered and approved by this Court in Ashish Handa V. Chief Justice of High Court of P& H reported in (1996) 3 SCC 145 and Suprem e Court Advocates-on- Record Assn. v. Union of I ndia reported in AI R 1994 SC 268.
41. Thus, w here the Governor acts as the Head of the State, except in relation to areas w hich are earm arked under the Constitution as giving discretion to the Governor, the exercise of pow er by him m ust only be upon the aid and advice of the Council of M inisters, for the reason that the Governor being the custodian of all executive and other pow ers under various provisions of the Constitution is required to exercise his form al Constitutional pow ers only upon and in accordance w ith the aid and advice of his Council of M inisters. He is, therefore, bound to actunder the Rules of Business fram ed under Article 166(3) of the Constitution. (Vide: Pu M yllai Hlychho v. State of M izoram reported in AI R 2005 SC 1537).
42. I n Ram N agina Singh v. S.V. Sohni reported in AI R 1 976 Pat 36, the Patna High Court considered the issue involved herein i.e. the appointm ent of the Lokayukta, under the Bihar Lokayukta Act, 1973 and held that ordinarily w hen a pow er is vested even by virtue of a statute in the Governor he m ust act in accordance w ith the aid and advice tendered to him by the Council of M inisters for the sim ple reason that he does not cease to be an Executive Head as m entioned under the Constitution m erely because such authority is conferred upon him by a statute. I t w ould in fact be violative of the schem e of the Constitution if it w as held that the m ere use of the w ord 'Governor' in any statute is sufficient to im pute to the legislature, an intention by it to confer a pow er, 'eo nom ine'. Any interpretation other than the one m entioned above, w ould, therefore, be against the concept of parliam entary dem ocracy w hich is one of the basic postulates of the Constitution. I n view of the Rules of Executive Business, the topic involving appointm ent of the Lokayukta m ust be brought before the Council of M inisters. Even if the appointm ent in question is not governed by any specific rule in the Rules of Executive Business such appointm ent m ust still be m ade follow ing the said procedure for the reason that the Rules of Executive Business cannot be such so as to override any bar im posed by Article 163(3) of the Constitution.
43. How ever, a different situation altogether m ay arise w here the Governor ex officio, becom es a statutory authority under som e statute.
Page 76 of 10344. I n Hardw ari Lal v. G.D. Tapase reported in AI R 1982 P& H 439, the pow ers of the Governor, w ith respect to the appointm ent/ rem oval of the Vice- Chancellor of M aharshi Dayanand University, Rohtak under the M aharshi Dayanand University (Am endm ent) Act, 1980 w ere considered w herein a direction w as sought w ith regard to the renew al of the term of the Vice- Chancellor of the said University. Certain prom ises had been m ade in connection w ith the sam e w hile m aking such appointm ent. The Court held that, as the Governor w as the ex officio Chancellor of the University, therefore, by virtue of his office, he w as not bound to act under the aid and advice of the Council of M inisters. Under Article 154 of the Constitution, the executive pow ers of the State are vested in the Governor w hich m ay be exercised by him either directly, or through officers subordinate to him , in accordance w ith the provisions of the Constitution. Article 161 confers upon the Governor, a large num ber of pow ers including the grant of pardon, reprieves, respites or rem issions of punishm ent, etc. Such executive pow er can be exercised by him only in accordance w ith the aid and advice of the Council of M inisters. Article 162 states that the executive pow er of the State shall extend to all such m atters w ith respect to w hich the Legislature of the State has the pow er to m ake law s. Therefore the said provision w idens the pow ers of the Governor. Article 166(3) of the Constitution further bestow s upon the Governor the pow er to m ake rules for m ore convenient transactions of business of the Governm ent of the State and also for the purpose of allocating am ong the M inisters of State such business. There are several w ays by w hich, a pow er m ay be conferred upon the Governor, or qua the Governor, w hich w ill enable him to exercise the said pow er by virtue of his office as Governor. Therefore, there can be no gainsaying that all the pow ers that are exercisable by the Governor by virtue of his office can be exercised only in accordance w ith the aid and advice of the Council of M inisters except insofar as the Constitution expressly, or perhaps by necessary im plication, provides otherw ise.
45. Thus, in such a situation, the statute m akes a clear-cut distinction betw een tw o distinct authorities, nam ely, the Chancellor and the State Governm ent. W hen the legislature intentionally m akes such a distinction, the sam e m ust also be interpreted distinctly, and w hile dealing w ith the case of the Vice-Chancellor, the Governor, being the Chancellor of the University, acts only in his personal capacity, and therefore, the pow ers and duties exercised and perform ed by him under a statute related to the University, as its Chancellor, have absolutely no relation to the exercise and perform ance of the pow ers and duties by him w hile he holds office as the Governor of the State.
46. I n University of Allahabad v. Anand Prakash M ishra reported in (1997) 10 SCC 264, this Court dealt w ith the pow er of the Governor of the State of U.P. ex officio, w ith respect to all the Universities established under the provisions of the U.P . State Universities Act, 1973 (hereinafter referred to as `the Act 1973'). Section 68 of the Act, 1973 em pow ers the Chancellor to entertain any question, related to the appointm ent, selection, prom otion or term ination of any em ployee in the University. I n the m eanw hile, the Legislature of the State of U.P., enacted the U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Backw ard Classes) Act, 1994 (hereinafter referred Page 77 of 103 to as `the Act 1994), providing for a particular reservation. This Court held that Section 6 of the 1994 Act enables the State Governm ent to call for records and direct enforcem ent of the provisions of the said Act. This Court also held that w hen the Governor ex officio acts as the Chancellor of a University he acts under Section 68 of the 1973 Act and discharges statutory duties as m entioned under the 1973 Act, but w hen the Governm ent calls for the record of appointm ent of any em ployee to exam ine w hether the reservation policy envisaged under the 1994 Act has been given effect to or not and takes action in such respect then he acts in his capacity as Governor under Article 163 of the Constitution of I ndia and is therefore, bound to act upon the aid and advice of the Council of M inisters.
47. The constitutional provisions hence, dearly provide that the Governor does not exercise any pow er by virtue of his office in his individual discretion. The Governor is aided and advised by the Council of M inisters in the exercise of such pow ers that have been assigned to him under Article 163 of the Constitution. The executive pow er of the State is coextensive w ith the legislative pow er of the State and the Governor in the constitutional sense discharges the functions assigned to him under the Constitution w ith the aid and advice of the Council of M inisters except insofar as he is by or under the Constitution required to exercise such functions in his ow n discretion. The satisfaction of the Governor for the purpose of exercise of his other pow ers or functions as required by the Constitution does not m ean the personal satisfaction of the Governor, but refers to satisfaction in the constitutional sense, under a cabinet system of governm ent. The executive m ust act subject to the control of the legislature. The executive pow er of the State is vested in the Governor as he is the head of the executive. Such executive pow er is generally described as residual pow er, w hich does not fall w ithin the am bit of either legislative or judicial pow er. How ever, executive pow er m ay also partake legislative or judicial actions. All pow ers and functions of the President, except his legislative pow ers as have been m entioned, for exam ple, in Article 123 viz. the Ordinance-m aking pow er, and all pow ers and functions of the Governor, except his legislative pow er, as also for exam ple, under Article 213, w hich state that Ordinance-m aking pow ers are executive pow ers of the Union, vested in the President under Article 53(1) in one case, and are executive pow ers of the State vested in the Governor under Article 154(1) in the other case. Clause (2) or clause (3) of Article 77 are not lim ited in their operation only w ith respect to the executive actions of the Governm ent of I ndia under clause (1) of Article 77. Sim ilarly, clause (2) or clause (3) of Article 166 are also not lim ited in their operation only w ith respect to the executive actions of the Governm ent of the State under clause (1) of Article 166. The expression, 'Business of the Governm ent of I ndia' in clause (3) of Article 77, and the expression 'Business of the Governm ent of the State' in clause (3) of Article 166, include all executive business. (Vide: Sam sher Singh, Ram das Shrinivas N ayak, Bhuri N ath v. State of J& K and N arm ada Bachao Andolan v. State of M adhya Pradesh reported in (2011) 12 SCC 333).
48. I n M aru Ram V. Union of I ndia reported in AI R 1980 SC 2147 a Constitution Bench of this Court held that (SCC pp. 146-47, para 61) '61.... the Governor is but a shorthand expression for the State Governm ent and the President is an abbreviation for the Central Governm ent.' Page 78 of 103
49. The exceptions carved out in the m ain clause of Article 163(1), perm it the legislature to entrust certain functions to the Governor to be perform ed by him , either in his discretion, or in consultation w ith other authorities, independent of the Council of M inisters. The m eaning of the w ords 'by or under' is w ell-settled. The expression, `by an Act', w ould m ean by virtue of a provision directly enacted in the statute in question and that w hich is conceivable from its express language or by necessary im plication therefrom . The w ords 'under the Act', w ould in such context, signify that w hich m ay not directly be found in the statute itself, but w hich is conferred by virtue of pow ers enabling such action(s) e.g. by w ay of law s fram ed by a subordinate law m aking authority com petent to do so under the Parent Act. (Vide: I ndram ani Pyarelal Gupta v. W .R. N atu reported in AI R 1963 SC 274).
50. This Court in Ram eshw ar Prasad (6) v. Union of I ndia reported in (2006) 2 SCC 1 held: (SCC p.82, para 57) '57. The expression 'required' found in Article 163(1) is stated to signify that the Governor can exercise his discretionary pow ers only if there is a com pelling necessity to do so. I t has been reasoned that the expression 'by or under the Constitution' m eans that the necessity to exercise such pow ers m ay arise from any express provision of the Constitution or by necessary im plication. The Sarkaria Com m ission Report further adds that such necessity m ay arise even from rules and orders m ade 'under' the Constitution.'
51. How ever, there is a m arked distinction betw een the provisions of Articles 74 and 163 of the Constitution. The provisions of Article 74 of the Constitution, are not pari m ateria w ith the provisions of Article 163, as Article 74 provides that there shall be a Council of M inisters, w ith the Prim e M inister at their head to aid and advise the President w ho shall, in the exercise of his functions, act in accordance w ith such advice as is rendered to him , provided that the President m ay require the Council of M inisters to reconsider such advice, either generally or otherw ise, and the President shall act in accordance w ith the advice that is tendered after such reconsideration. W hile Article 163 provides that there shall be a Council of M inisters w ith the Chief M inister at their head, to aid and advise the Governor in the exercise of his functions, an exception has been carved out w ith respect to situations w herein, he is by or under this Constitution required to perform certain functions by exercising his ow n discretion.
52. The exception carved out by the m ain clause under Article 163(1) of the Constitution perm its the legislature to bestow upon the Governor the pow er to execute certain functions that m ay be perform ed by him , in his ow n discretion, or in consultation w ith other authorities, independent of the Council of M inisters. W hile dealing w ith the pow ers of the Governor w ith respect to appointm ent and rem oval, or im posing punishm ent for m isconduct, etc. the Governor is required to act upon the recom m endations m ade by the High Court, and not upon the aid and advice rendered by the Council of M inisters, for the reason that the State is not com petent to render aid and advice to the Governor w ith respect to such subjects. W hile the High Court retains pow ers of disciplinary control over the subordinate judiciary, including the pow er to initiate disciplinary proceedings, suspend them during inquiries, and also to im pose punishm ents upon them , form al orders, in relation to questions regarding the dism issal, rem oval, reduction in rank or the term ination of Page 79 of 103 services of judicial officers on any count, m ust be passed by the Governor upon recom m endations m ade by the High Court. (Vide: Chandra M ohan v. State of U.P . & Ors. reported in AI R 1966 SC 1987 and Rajendra Singh Verm a v. Lt. Governor (N CT of Delhi) & Ors. reported in (2011) 10 SCC 1, SCC p. 49, para
100).
53. I n Bhuri N ath (supra), the question that arose w as in relation to w hether the Governor w as bound to act in accordance w ith the aid and advice of the Council of M inisters, or w hether he could exercise his ow n discretion, independent of his status and position as the Governor, by virtue of him being the ex officio Chairm an of the Shri M ata Vaishno Devi Shrine Board under the Shri M ata Vaishno Devi Shrine Act, 1988. The Shrine Board discharges functions and duties, as have been described under the Act in the m anner prescribed therein, and thus, after exam ining the schem e of the Act, this Court held that:
(SCC p. 765, para 24) '24... .. The decision is his ow n decision, on the basis of his ow n personal satisfaction, and not upon the aid and advice of the Council of M inisters. The nature of exercise of his pow ers and functions under the Act is distinct, and different from the nature of those that are exercised by him form ally, in the nam e of the Governor, under his seal, for w hich responsibility rests only w ith his Council of M inisters, headed by the Chief M inister.'
54. I n State of U.P . v. Pradhan Sangh Kshettra Sam iti & Ors. reported in AI R 1995 SC 1512, this Court dealt w ith the position of the Governor in relation to functions of the State and held as under:
'37. Adm ittedly, the function under Article 243(g) is to be exercised by the Governor on the aid and advice of his Council of M inisters. Under the Rules of Business m ade by the Governor under Article 166(3) of the Constitution, it is in fact an act of the M inister concerned or of the Council of M inisters as the case m ay be. W hen the Constitution itself thus equates the Governor w ith the State Governm ent for the purposes of relevant functions... .... Further, Section 3(60)(c) of the General Clauses Act, 1897 defines 'State Governm ent' to m ean Governor w hich definition is in conform ity w ith the provisions of the Constitution...
38... ... [The] 'Governor' m eans the Governm ent of the State and all executive functions w hich are exercised by the Governor, except w here he is required under the Constitution to exercise the functions in his discretion, are exercised by him on the aid and advice of Council of M inisters.' (em phasis added)
55. I n S.R. Chaudhuri v. State of Punjab & Ors. reported in AI R 2001 SC 2707, this Court held as under: (SCC pp. 138-39 & 146-47, paras 21, 40-41) '21. Parliam entary dem ocracy generally envisages (i) representation of the people, (ii) responsible governm ent, and (iii) accountability of the Council of M inisters to the Legislature. The essence of this is to Page 80 of 103 draw a direct line of authority from the people through the Legislature to the executive.
40. Chief M inisters or the Governors, as the case m ay be, m ust forever rem ain conscious of their constitutional obligations and not sacrifice either political responsibility or parliam entary conventions at the altar of 'political expediency'... ...
41... ... Constitutional restraints m ust not be ignored or bypassed if found inconvenient or bent to suit 'political expediency'. W e should not allow erosion of principles of constitutionalism .
(em phasis in original)
56. The principle of check and balance is a w ell-established philosophy in the governance of our country under our Constitution. I f w e w ere all to have our w ay, each person w ould be allow ed to w age a w ar against every other person i.e. Bellum Om nium Contra Om nes. This rem inds us to abide by Constitutional law follow ed by statutory law otherw ise everybody w ould sit in appeal against the judgm ent of everybody.
57. I n view of the aforesaid discussion, the law as evolved and applicable herein can be sum m arised to the effect that the Governor is bound to act on the aid and advice of the Council of M inisters, unless he acts as, 'persona designata' i.e. 'eo nom ine', under a particular statute, or acts in his ow n discretion under the exceptions carved out by the Constitution itself."
[50] From the above, what has emerged is that under Article 163(2) of the Constitution, it would be permissible to the Governor to act without ministerial advice in certain situations, depending upon the circumstances therein, even though they may not specifically be mentioned in the Constitution as discretionary functions. One such situation is where no such advice will be available from the Council of Ministers or where one Ministry has resigned and the other alternative Ministry cannot be formed. Moreover, Article 163(2) provides that the Governor himself is the final authority to decide upon the issue of whether he is required by or under the Constitution, to act in his discretion. The Council of Ministers, therefore, would be rendered incompetent in the event of there being a difference of opinion with respect to such a question, and such a decision taken by the Governor would not be justiciable in any Court.
[51] In Gorantla Butchaiah Chow dary (supra) a Division Bench of Andhra Pradesh High Court held that the Constitutional conventions leave no manner of doubt that the Governor has to exercise his own discretion so far as the dissolution of the Page 81 of 103 Legislative Assembly is concerned. Referring to Article 174(1) of the Constitution, it was held that it has vested the Governor with the power of summoning the Legislature, subject, however, to the condition that 6(six) months shall not intervene within the Sessions of the Assembly.
[52] In Pratapsingh R ajirao R ane (supra), a Division Bench of the Bombay High Court dealing with the question as to whether the Governor is answerable to the Court even in respect of a charge of malafides made the following observations:
"43. W hile dealing w ith Full Bench judgm ent of the M adras High Court, the noted Constitutional Expert H.M . Seervai in "Constitutional Law of I ndia", 4 th Edition, Volum e I f at page 2070, N ote 18.79, has opined that the view taken by Full Bench that in respect of his official acts, the Governor is not answ erable to the Court even in respect of a charge of m ala fides is correct.
44. W e concur w ith this position. W e also agree w ith the learned author that in such eventuality Governor cannot be said to be under duty to deal w ith allegations of m ala fides in order to assist the Court, w hich in effect w ould m ean that he is answ erable to the Court.
45. The Governor in term s of Article 156 of the Constitution holds office during the pleasure of the President. Any m ala fide actions of the Governor m ay, therefore, conceivably be gone into by the President. Another effective check is that the M inistry w ill fall if it fails to com m and a m ajority in the Legislature Assem bly.
46. Thus, the position in law is clear that the Governor, w hile taking decisions in his sole discretion, enjoys im m unity under Article 361 and the discretion exercised by him in the perform ance of such functions is final in term s of Article 163(2). The position insofar as the dism issal of the Chief M inister is concerned, w ould be the sam e, since w hen the Governor acts in such a m atter, he acts in his sole discretion. I n both the situations, nam ely, the appointm ent of the Chief M inister and the dism issal of the Chief M inister, the Governor is the best judge of the situation and he alone is in possession of the relevant inform ation and m aterial on the basis of w hich he acts. The result, therefore, w ould be that such actions cannot be subjected to judicial scrutiny at all.
[53] In K .A. M athialagan (supra), the Madras High Court dealing with the writ petition filed by the Speaker of the Tamil Nadu Legislative Assembly for a direction to the respondents not to interfere in any manner with his right to continue to function as Speaker of the Tamil Nadu Legislative Assembly and also for preventive injunction restraining the Deputy Speaker of the Assembly from functioning as Speaker thereto Page 82 of 103 and also dealing with the Article 175(2) of the Constitution under which the Governor had given message, it was held thus:-
"7... ... ... ... ..W e are not im pressed w ith this argum ent. There is nothing to indicate either in the provisions of the Constitution or in the rules fram ed under Art. 208 to gain the conclusion that the Assem bly if sum m oned after prorogation w ould be clothed w ith a special garb of identification, nor w ould it im press it w ith a badge of singularity apart from norm al. Art. 175 (2) of the Constitution of I ndia does not create any such special situation. One of the Constitutional responsibilities of the Governor of a State is to sum m on an Assem bly after he prorogues it. This is an event w hich m ust necessarily follow the initial prorogation and as such sum m oning the peculiar circum stances is the responsibility of the Governor of the State, h issues a m essage w hich is practically equal to the agenda of the session w hich has to be transacted in the sum m oned session of the Assem bly. N o provision of acceptable law has been brought to our notice nor any such practice prevailing in the British Parliam ent w arrants the presum ption that there is any distinctinctivencess or specially about a sum m oned Assem bly. N o doubt it is for the Speaker to preside over it and transact the business. But hat is not an indicia to sustain the extraordinary case of the petitioner that no one m em ber present in the Assem bly has the right t intercept his schem e of conduct of the proceedings w hich is even contrary to the m andate issued by the Governor under Art. 178 (2) w hen re-sum m oning the Assem bly after prorogation. The censure m otion against eh M inister, w hich is not a form al subject, allow ed by the petitioner to be m oved w as not w ithin the periphery of the m essage sent by the Governors and so norm ally could not be taken up for discussion under R. 21 (2). The m essage of the Governor w hich is a directive to all concerned, is at once a m andate and a m andate pregnant w ith details as to the subjects to be discussed in the Assem bly session. As it is com m on ground as w e shall presently refer to that such an agenda contained din the m essage w as notified to all concerned including the Speaker and the Assem bly reassem bled to transact such notified businesses, it follow s that the proceeding to be conducted therein are subject to the usual norm s and principles w hich govern the conduct of such proceedings of a Legislative Assem bly of a State and generally in accordance w ith the rules fram ed under Art. 208 of the Constitution. Such rules, unless there is cause of deviation and it is so desired by the House are ordinarily understood to be the m agna caria for the conduct of the proceedings of the Assem bly. There is therefore no peculiar significance attached to the session of the Assem bly w hich is sum m oned after the prorogation.
8. ... .Even otherw ise, the agenda having been prescribed by the Governor in the m essage as above, it w as not open to the Speaker to bypass the sam e and introduce an irregular censure m otion and cause it to be taken up out of turn at that particular juncture. I F the Speaker took the m otion of no confidence of Thiru M .G. Ram achandran in the first instance as claim ed and if the House resented the said action because of its out of context introduction, into the House of the Assem bly and since it ran repugnant to the w ritten m andate of the Governor under Art. 175(2), then the petitioner can have no basis for com plaint. I t cannot be said that the petitioner w as Page 83 of 103 ignorant of the nature and content of the subjects that are to be discussed on 2 nd Decem ber 1972. I n so far as 2 nd Decem ber 1972 is concerned, it is peculiar in the sense that in the session w hich began on that day the item ized subjects set out in the m essage are to be discussed w illy-nilly, and the Speaker, though the presiding officer therein, cannot, for reasons w hich are m ore personal in the instant case, attem pt to m ake deliberate deviation therefrom so as to cloud the agenda by the introduction of non-discussable item s in the floor of the Assem bly. The petitioner him self w as aw are of the notice of m otion of no confidence, given by m em bers on 16 th N ovem ber 1972. He has also felt the pulse of the m ajority of the m em bers of the Assem bly even on 13 th N ovem ber 1972 w hen a m em orandum signed by 183 m em bers of the Assem bly w as sent asking the Speaker to resign. The Secretary of the Assem bly, w hose statem ent as to facts w e have no reason to brush aside, states that the petitioner w as aw are of such a notice of m otion dated 16 th N ovem ber 1972, w hich w as sent to him for inform ation. There w as therefore a subject w hich w ould squarely com e w ithin item 8 of the m essage of the Governor. W hen after the question hour this m otion w as sought to be taken up at the instance of the m overs of the resolution, any overt act on the part of the Speaker to ignore such a legitim ate m ove on the part of the m em bers of the Assem bly can only be understood as a self serving one to buttress the events and to act up a contention w hich is prim a facie not acceptable.
12. W hat em erges from the version of the events that happened on 2 nd Decem ber 1972 is that there w as undoubtedly pandem onium and confusion during the session. The petitioner w ho w as presiding over the Assem bly w as aw are that there w as a resolution for his rem oval w hich w as to be considered at the session. This is because the draft m essage of the Governor and the business to be undertaken by the Assem bly w as seen by him and approved by him . He w ould therefore be deem ed to be conscious of the fact that there w as a certain possibility of such a resolution for his rem oval being taken up for consideration by the House on 2 nd Decem ber, 1972. W ith the consciousness he occupied the Chair and has therefore to face the lim itations of such occupancy. The m otion of Thiru M .G. Ram achandran w hich w as given notice of on that date, no doubt, w as an item w hich could be discussed norm ally in norm al situations. But in view of the fact that the agenda of the sum m oned Assem bly has been fixed by the Governor under Art. 175(2), it w as the prim ordial duty of the Speaker as the holder of office under the Constitution to obey such a m andate and act in accordance w ith the item ized agenda therein. I n our view , he ought not to have allow ed the no confidence m otion against the M inistry to rem oved at that stage before he began transacting the other business as set in the m essage. Even so, he had not the requisite control and authority to allow Thiru M .G. Ram achandran to m ove or discuss about the no confidence m otion against the M inistry w hen he could not preside over the House. A vacancy in the office of the Speaker is created by Thiru N . Veerasam i's rising after question hour and m oving the resolution for rem oval of the Speaker. There w as no occasion or necessity for him to fix up his rem oval from office. The date has already been fixed by him self giving assent to item 8 of the agenda w hich included one such resolution of w hich valid notice w as given on 16 th N ovem ber, 1972. I n our view , it w as not even necessary for the Leader of House to seek for a dispensation of R. 53 by Page 84 of 103 invoking R.244. Apparently the Leader of the House by w ay of abundant caution sought for its dispensation. That by itself w ould not m ake any difference in the eye of law or in the w ake of the constitutional PROVI SI ONS. The undeniable fact is that there w as a resolution for the rem oval of the Speaker w hich could be validly taken up for consideration on 2 nd Decem ber 1972, and it w as this w hich w as sought to be done im m ediately after the question hour. The petitioner, for reasons better know n to him self, did not allow such a m otion. Under Article 181(1), if at any sitting of the Legislative Assem bly w hile, any resolution for the rem oval of the Speaker from his office is under consideration, the Speaker shall not, though he is present, preside. I n such contingency, the provisions of Art. 180 (2) shall apply in relation to every such sitting as if the Speaker is absent. I t is in those circum stances that the deem ed vacancy w as appreciated by the House and the leader of the House in consequence thereof sought the leave of the House through the Deputy Speaker for the latter to occupy the chair and conduct the proceedings thereafter. W e are of the opinion that the attitude of the petitioner in not having allow ed the resolution of Thiru N . Veerasam i and others to be m oved w hen it w as sought to be m oved w as not in order and it w as repugnant to the Constitution and its duly set norm s. His attem pt to continue to occupy the Chair w hen a resolution for his rem oval w as under consideration is yet again a Constitutional violation. The expression 'for the rem oval of the Speaker' has to be given its full significance. The resolution for the rem oval of a Speaker is undoubtedly elastic in its content and som ew hat different from a resolution to rem ove a Speaker. A resolution for the rem oval of the Speaker becom es operative w hen a notice of m otion for the rem oval of the Speaker is given and is taken up for consideration. Eo instanti w hen such a resolution com es up for consideration there is a deem ed vacancy under the provisions of the Constitution and the Speaker even though he is physically present is said to be constitutionally absent and cannot there fore be the Presiding Officer of the Assem bly from that m om ent. I t w as this position that w as correctly understood by the Leader of the House and the m ajority of the m em bers w hen they allow ed the Deputy Speaker to occupy the Chair. The m inor incidents that follow ed such as sw itching off of the m ike and the rem oval of the bell are all m atters w hich happened inside the Assem bly. W hether this court can review such events w e shall consider presently. On a reasonable review of the events that happened inside the Assem bly w e have no hesitation to hold that there w as vacancy in the office of the Speaker w hen Thiru N . Veerasam i and others m oved the resolution and the occupation of the Chair by the Deputy Speaker w as in order. The proceedings as reflected in the printed book published by the Legislative Assem bly departm ent on 15 th Decem ber 1972 gives the indelible im pression that the m otion of no confidence against the Speaker m oved by Thiru N . Veerasam i w as m oved, discussed and decided upon in a m anner provided for both under the Constitution and under the rules. Firstly in accordance w ith the test as contained in the printed leaflets the leave of the House w as sought and it w as obtained. There w as a further discussion thereon in w hich the petitioner did not participate, nor does it appear that he w as anxious to speak on it. Ultim ately by a voice vole the m ajority resolved to accept the m over's resolution. Even otherw ise, the 145 affidavits filed by the Assem bly m em bers reiterating w hat is reflected in the printed pam phlet regarding the debates hat ensued in the Assem bly on 2 nd Decem ber, 1972 w hich are accepted by us prom pt us to hold that the resolution to rem ove the Speaker w as carried w ith a m ajority and that it is an effective, valid and a legally im plem entable resolution.Page 85 of 103
[54] In Nipam acha Singh (supra), this Court dealing with the notice relating to removal of Speaker of the 7th Manipur Legislative Assembly vis-à-vis Articles 212 & 179 of the Constitution of India, held that the Speaker was immune from interference by the Court and was protected under Clause (2) of Article 212 on the grounds that procedure laid down under Rules or Law had not been strictly followed, if he was acting within his jurisdiction. It was further held that the Speaker in rejecting the motion in notice of petitioners for removal of Speaker from Office exercised jurisdiction not vested on him but in Legislative Assembly and had violated constitutional rights of petitioners.
[55] In K .A. M athaialagan (supra), the Full Bench of Madras High Court decided the questions of considerable importance as to the constitutional position of the Governor, with particular reference to the prorogation of the State Legislative Assembly. The relevant facts involved in the said case were - as a result of a split in the ruling party in the Tamil Nadu Legislature, the relations between the Speaker and the Chef Minister were strained. Following certain happenings in the Legislative Assembly, the Speaker adjourned the House for 3(three) weeks. Thereupon, the Governor of Tamil Nadu prorogued the legislature, intending to pass an Ordinance, which will enable the legislature to dispose of urgent business. But before that could be done, a writ petition was filed on which notice was issued to the Governor. On receipt of the notice ordinance was not issued.
[56] In the writ petition, the petitioner had applied for a writ of certiorari to quash the Governor's order proroguing the Legislative Assembly. The Governor and the Chief Minister were made parties. The ground for impugning the Governor's order was that it was passed mala fide, that the Governor should not have followed the Chief Minister's advice which was given to further the interest of the Chief Minister's party, and that the Governor should have acted according to his own discretion. The Page 86 of 103 Governor filed an affidavit contending that under Article 361(1) he was not answerable to the Court for anything done in the exercise of his powers; but without prejudice to that submission, he pleaded to the charge of mala fides on the merits and justified his action which had been taken on the advice of the Chief Minister. It may be mentioned that after an elaborate discussion of the constitutional position of the Governor, and of the immunity conferred on him by Article 361(1), the Court held on the facts that the Governor's order was proper and valid.
[57] In terms of the said Full Bench decision and the decision of the Apex Court in Sam sher Singh (supra), the Governor is required to act in his discretion, which may or may not be expressly provided. In some cases, the Governor has the power to act in his discretion as a matter of necessary implication. Article 163(2) postulates that a question might arise whether by or under the Constitution, the Governor is required to act in his discretion; and Article 163(2) provides an answer by making the Governor the sole and final judge of that question, and by further providing that no action of the Governor shall be called in question on the ground that he ought or ought not to have acted in his discretion. In view of article 163(2), the Court may not have jurisdiction to decide whether the Governor ought or ought not to act in his discretion.
[58] In this proceeding, both the writ petitions have raised the question whether the Governor had been advised by the Council of Ministers. According to the petitioners, the Governor could not have preponed the Assembly session exercising his purported power under Article 174(1) of the Constitution of India. Article 163(3) prevents the Court from going into that question. Consequently, the writ petitioners have raised the question whether under our Constitution the Governor was under an obligation to act in his discretion. In view of Article 163(2), the Governor and not the Court is the sole judge of that question.
[59] In Satyapap Dang (Supra), discarding the submission that the legislature should not be at the mercy of the Governor and the absolute field of action Page 87 of 103 open to the legislature and the Speaker would be unreasonably cut down and thus lead to assumption of absolute powers by Governors, the Apex Court declined to entertain such apprehensions. Referring to the kind of situation in which the State of Punjab was, the Apex Court opined that the action of the Governor, although was drastic but was constitutional and resulted from a desire to set right a disparate situation as bacon once said, no remedy caused so much pain as those which are efficacious.
[60] In Pu. M yllaihlychho(Supra) to which the learned counsel for the petitioners has referred to, referring to the powers and duties for the Governor as enumerated in the Constitution, the Apex Court observed that some of those powers are required to be exercised in his discretion and some other powers with the aid and advice of the council of Ministers. It was further observed that wherever the Constitution requires the satisfaction of the Governor for the exercise of any power or function, the satisfaction required by the Constitution is not personal suggestion of the Governor but the satisfaction in the constitutional sense under the Cabinet system of Government. In the said case, the members in question held office through the pleasure of the Governor and the council of Ministers advised the Governor to terminate their membership and all relevant records were placed before him. In such a situation and as the Governor was not left with any discretionary power, it was held that he was bound by the advice given by the council of Ministers.
[61] The decision in Valluri Basavaiah Chow dhary (Supra) was referred to in reference to the observations made in paragraphs 17, 18 and 21, which are reproduced below :-
"17. There is a clear distinction betw een 'an Act of legislature', 'a legislative act' and 'a resolution of the House'. The High Court has com pletely overlooked this distinction .
18. The Governor is a constitutional head of the State Executive, and has, therefore, to act on the advice of a Council of M inisters under Art.
163. The Governor is, how ever, m ade a com ponent part of the State Legislature under Art. 1 64, just as the President is a part of Page 88 of 103 Parliam ent. The Governor has a right of addressing and sending m essages to under Arts. 175 and 176, and of sum m oning, proroguing and dissolving under Art. 174, the State Legislature, just as the President has in relation to Parliam ent. He also has a sim ilar pow er of causing to be laid before the State Legislature the annual financial statem ent under Art. 202(1), and of m aking dem ands for grants and recom m ending 'M oney Bills' under Art. 207 (1). I n all these m atters the Governor as the constitutional head of the State is bound by the advice of the Council of M inisters.
21. The function assigned to the Governor under Art. 176(1) of addressing the House or Houses of Legislature, at the com m encem ent of the first session of each year, is strictly not a legislative function but the object of this address is to acquaint the m em bers of the Houses w ith the policies and program m es of the Governm ent. I t is really a policy statem ent prepared by the Council of M inisters w hich the Governor has to read out. Then again, the right of the Governor to send m essages to the House or Houses of the Legislature under Art. 175(2), w ith respect to a Bill then pending in the legislature or otherw ise, norm ally arises w hen the Governor w ithholds his assent to a Bill under Art. 200, or w hen the President, for w hose consideration a Bill is reserved for assent, returns the Bill w ithholding his assent. As already stated, a 'Bill' is som ething quite different from a 'resolution of the House' and, therefore, there is no question of the Governor sending any m essage under Art. 175(2) w ith regard to a resolution pending before the House or Houses of the Legislature ."
[62] The above observation was in the context of the challenge to the judgement and order of the Andhra Pradesh High Court allowing a batch of 37 writ petitions in which the issue involved was, whether the Urban Land (Ceiling and Regulation) Act, 1976 was ultra-vires the Parliament, so far as the state of A.P. is concerned. The High Court was of the view that the term "Legislature" in Article 252(1) of the Constitution comprises both the Ministers of Legislature i.e. the Legislative Assembly and the Legislative council and the Governor of the State. The Act was struck down on the ground that the Parliament was not competent to enact the impugned Act for the State of A.P., inasmuch as, the Governor of A.P. did not participate in the process of authorization in the passing of the Act by the Parliament. Repelling the construction placed by the High Court under Article 252(1), it was held that if any law made by the Legislature of a State is repugnant to any provision of law enacted by the Parliament, the law made by the Parliament shall prevail. It was also noticed that Article 252 empowers the Parliament to legislate for two or more States in Page 89 of 103 any of the matters with respect to which it has no power to make laws except as provided in Articles 249 and 250.
[63] It was in the above context, the Apex Court observed that the Governor has a right of addressing and sending messages too under Article 175 and 176 and for summoning, proroguing and dissolving under Article 174, the State Legislature, just as precedent as in relation to a Parliament. In para 19 of the judgement, it has been observed that the Governor is a component part of a legislature of a State under Article 168 in reference to the bill passed by the State Legislature, which has to be reserved for the assent under Article 200. The observation that there is no question of the Governor sending any message under Article 175(2) with regard to a resolution pending before the house is in reference to such a bill and not otherwise.
[64] Dr. K ashinath G. Jalm i (Supra) has been referred to in respect of the impugned order dated 15/12/2015, by which the Deputy Speaker set at naught the earlier order of the Speaker of the same date disqualifying the 14 MLAs who are respondents in this proceeding for the grounds assigned in the order. This issue is really become academic in this proceeding, inasmuch as, the order of the Speaker disqualifying 14 MLAs is under challenge in another writ petition being WP(C) No. 9/2016, in which an interim order has been passed suspending the effect and operation of the said order. Thus, since the parent order itself passed by the Speaker is subjudice in the said writ proceeding, the order of the Deputy Speaker holding the said order of the Speaker as nonest may not be advisable to be adjudicated upon in this proceeding, lest any finding embarrass / prejudices either parties in the said writ proceeding. It was broadly agreed upon by the learned counsel appearing for the parties that the order of the Deputy Speaker impugned in the writ petitions has virtually become academic as the outcome of the writ petition being WP(C) No. 9/2016 will govern the parties.
Page 90 of 103[65] The decision in K .D. Sarm ah (Supra) was referred to, to buttress the argument that there being suppression of material fact on the part of the respondents in respect of the resolution moved for removal of the Deputy Speaker, their prayers for vacation of the interim order and also to dismiss the writ petitions are liable to be rejected. The submission advanced was that the plea that the Governor was not apprised of the resolution for removal of the Deputy Speaker is incorrect, inasmuch as, vide Annexure- RA/2 letter dated 08/12/2015 addressed to the Governor's Secretariat, the Secretary, Arunachal Pradesh Legislative Assembly had furnished information as follows :-
"ARUN ACHAL P RADESH LEGI SLATI VE ASSEM BLY SECRETARI AT N o. LA/ LEG-24/ 2015 Dated N aharlagun the 8 th Decem ber, 2015 To The Secretary to Governor, Governor's Secretariat, Raj Bhaw an, I tanagar.
Sub : N otice of Resolution of Rem oval of Hon'ble Deputy Speaker.
Sir, W ith reference to your letter N o. GS/ 1-115/ 00(Vol-I I )/ 6742 dated 7 th Decem ber, 2015 on the above m entioned subject, I am to furnish the follow ing inform ation required by you for kind perusal of His Excellency the Governor.
1 Date of Receipt of the N otice of the 16 th N ovem ber, 2015
Resolution of the legislative
Assem bly.
2 Action taken by the Legislative File processed and
Assem bly on N otice under consideration
of Hon'ble Speaker.
3 Highlight of the precedent N il
Yours faithfully,
Sd/ - I llegible
( M . LASA)
Secretary
Arunachal Pradesh Legislative Assem bly
Page 91 of 103
N aharlagun".
[66] The above aspect of the matter has already been dealt with hereinabove.
[67] In I.A. No. 30/2016, the applicant has annexed the Annexure-VIII note
of the ADC to the Governor which has been extracted above. As per the said note, the file was at the official residence of the Speaker at Itanagar. It is the specific case of the application in IA 30/ 2016 that having not received any communication from the office of the Speaker of Arunachal Pradesh Legislative Assembly and also finding that no action has been initiated from his end, the Governor exercised his power conferred by Article 174(1) of the Constitution of India. Accordingly, he passed a speaking order dated 09/12/2015 modifying the summons already issued and instead summoning the 6th Arunachal Pradesh Legislative Assembly on 14/12/2015. It has further been stated that the message under Article 175(2) of the Constitution was issued fixing the resolution for removal of the Speaker as first item and that the Deputy Speaker shall preside over the house in accordance with the provision of Article 181 (1) of the Constitution of India.
[68] In M ayaw ati (Supra) , it has been held that in para 6 of the 10th schedule does not completely exclude the jurisdiction of the Court under Article 226 of the Constitution. It was, however, held that the scope of judicial scrutiny in limited to ascertain when the decision was vitiated by jurisdictional errors, vice "infirmity based on violation of the constitutional mandate, malafides, non- compliance with the Rules of Natural Justice and perversity."
[69] The decision in R aja R am Pal (Supra) was also referred to to emphasis on non-ouster of jurisdiction in the matter of judicial review in relation to exercise of Parliamentary provisions. While in para 431(f) summarizing the principles, the Apex Court held that the fact that parliament is an august body of coordinate constitutional Page 92 of 103 position, does not mean that there can be no judicial manageable standards to review exercise of its power, in para 431 (e) it was held that having regard to the importance of the functions discharged by the legislature under the constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc. have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one.
[70] The decision in Sir Kam eshw ar Singh (Supra) was referred to, to emphasis that the term 'Legislature" is not always used in the constitution is including the Governor, although Article 168 maxim a component part of the said legislation. The particular observation was in the context of validity of Bihar Land Reforms Act.
[71] Having discussed the decisions referred to by the learned counsel for the parties and keeping in mind that the ratio of a decision will have to be understood in the background of the facts-situation involved in each case and that a decision is an authority for what it actually decides and what logically follows from it, the question is, as to whether the decisions of the Governor impugned in this proceeding are vitiated being opposed to the constitutional mandates.
[72] A few basic facts although noticed hereinabove may not be out of place to mention here. As highlighted in IA No. 30/2016, for the last more than 3 months, a group of 21 Members of the Legislative Assembly belonging to Ruling Indian National Congress (I) clamored for change of guard in Arunachal Pradesh. They also camped in Delhi to press their demand. On 19/11/2015, a group of 13 MLAs submitted a letter to the Governor seeking preponing of the session of Arunachal Pradesh Legislative assembly which was earlier scheduled to be held on and from 14/01/2016 to 18/01/2016 to consider and vote for the resolution for removal of the Speaker brought Page 93 of 103 by them. The notice of resolution was submitted on 19/11/2015 to the office of the Speaker and it was duly received. As per the provision of proviso of Article 179, at- least 14 days notice has to be given for moving a resolution for removal of Speaker or Deputy Speaker. As to what transpired thereafter has been noted above. When no response was received from the end of the Secretary, Arunachal Pradesh Legislative Assembly, the Deputy Secretary to the Governor vide his letter dated 03/12/2015 requested furnishing of the informations as enumerated in the said letter. In the mean time, a rumour was out in the air that some members of the Assembly had submitted a notice for removal of Deputy Speaker. It was in such circumstances, the Governor directed his officials to make enquiry regarding the matter. Pursuant to the said direction, the above quoted letter dated 07/12/2015 was issued. It is the specific case of the Governor that neither the office of the Speaker nor any other authority had informed the Office of the Governor about the notice for resolution of removal of Deputy Speaker at any point of time. It may not be out of place to mention here that even in the writ petition, the petitioners have not annexed any copy of such notice.
[73] In the mean time and as noted above, the Deputy Secretary to the Governor vide his letter dated 07/12/2015 in reference to the earlier communications, again requested the Secretary, Arunachal Pradesh Legislative Assembly to furnish the required information with the further request to send his reply latest by 08/12/2015. The Secretary by his letter dated 08/12/2015 submitted his reply to the queries. The note of the ADC that was prepared on the basis of the enquiries has been noted above. Having not received any communication from the office of the Speaker and also finding that no action has been initiated from his end, the Governor after obtaining legal opinions took recourse to Article 174(1) of the Constitution of India and passed a speaking order dated 09/12/2015 preponing the Assembly session. On the same date, he also issued a message under Article 175(2) of the Constitution fixing the resolution for removal of the Speaker as first item on agenda of the State Assembly.
Page 94 of 103[74] In support of the plea of the petitioners that the Governor could not have preponed the assembly session of his own, Rule 3 of the Rules of Procedure and Conduct of Business pertaining to the Arunachal Pradesh Legislative Assembly has been referred to. As per the said Rule, the Chief Minister shall, in consultation with the Speaker, fix the date of commencement and the duration of the session, advice the Governor for summoning the Assembly under Article 174 of the Constitution. Rule 6(b) speaks of Business Advisory Committee. It shall be the function of the committee to recommend the time that should be allocated for the discussion of the stage or stages of such Government bills and other business as the Speaker, in consultation of the Leader of the House, may direct for being referred to the Committee.
[75] Referring to the aforesaid provisions, it was submitted that the Governor could not have preponed the assembly session of his own accord as no such power is discernible under Article 174(1) of the Constitution of India. Countering the said argument, it was submitted on behalf of the respondents that validity of any proceeding in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. In this connection, they referred to the Article 212 of the Constitution. Needless to say that the provisions contained in the Rules of Procedure and Conduct of Business, cannot override the constitutional provisions.
[76] In Sam sher Singh (Supra) itself on which the learned counsel for both the parties have placed reliance, the Apex Court has declared the law to the effect that the Governor being the custodians of all executive and other powers under various Articles shall, by virtue of those provisions, exercise his constitutional powers in accordance with the advice of Ministers, save in the exceptional situation enumerated in para 154 of the judgement, which however, is not exhaustive.
Page 95 of 103[77] Though normal rule is that the Governor acts on aid and advice of council of Ministers but there are exceptions under which Governor can act in his own discretion. It is well settled that the exercise of administrative power will stand vitiated if there is a manifest error of record or the exercise of power is arbitrary. In the instant case, when the requisition was placed seeking preponing of the session of Arunachal Pradesh Legislative Assembly to consider and vote for the resolution for removal of the Speaker, the Governor after providing the required notice, preponed the Assembly Session by passing the above quoted order dated 09/12/2015. The Governor having exercised his discretion in the facts and circumstances and having regard to the kind of discretion exercised, which is discretionary in nature to meet the demand of the situation, it cannot be said that he had acted beyond his scope, ambit and jurisdiction of a Governor as per the constitutional scheme. Mere allegation of malafide and biasness is not enough.
[78] Mere irregularity in the procedure while exercising discretionary powers cannot lead to a situation in which such action of the Governor would require interference exercising the power of judicial review under Article 226 of the Constitution of India. The position of law is clear that the Governor while taking decisions in his own discretion, enjoys immunity under Article 361 and the discretion exercised by him in the performance of such function is final in terms of Article 163(2), unless the same is vitiated with the kind of situation in which gross illegality and malafide exercise of power, opposed to the constitutional mandate are discernible on the face of it.
[79] In R am eshw ar Prasad (Supra) , the Apex Court in this regard made the following significant observation :-
"261. Judicial response to hum an rights cannot be blunted by legal jugglery. (See: Bhupinder Sharm a v. State of Him achal Pradesh reported in 2003(8) SCC 551). Justice has no favourite other than the truth. Reasonableness, Page 96 of 103 rationality, legality as w ell as philosophically provide colour to the m eaning of fundam ental rights. W hat is m orally w rong cannot be politically right. The petitioners them selves have founded their claim s on docum ents w hich do not have even shadow of genuineness so far as claim of m ajority is concerned. I f the Governor felt that w hat w as being done w as m orally w rong, it cannot be treated as politically right. This is his perception. I t m ay be erroneous. I t m ay not be specifically spelt out by the Constitution so far as his pow ers are concerned. But it ultim ately is a perception. Though erroneous it cannot be term ed as extraneous or irrational. Therefore how ever suspicious conduct of the Governor m ay be, and even if it is accepted that he had acted in hot haste it cannot be a ground to term his action as extraneous. A shadow of doubt about bona fides does not lead to an inevitable conclusion about m ala fides."
[80] In the instant case when the request was made for preponment of the Assembly session with the notice to table the resolution for removal of the Speaker, the Governor appreciating the fact situation and the grounds indicated in the impugned order dated 09/12/2015 recording his satisfaction, exercised the power conferred by Article 174 (1) of the Constitution and preponed the assembly session. These discretion applied by the Governor is within the exceptions provided for within the constitutional scheme, some of which have been enumerated in Sam eher Singh (Supra) and also in the later decisions referred to above. An opinion was formed by the Governor that there was an attempt on the part of the office of the Speaker to subvert the mandate of the Constitution and that it was imperative on the part of the Governor to interfere in the matter by exercising the powers conferred by Article 174 (1) of the Constitution.
[81] The language of Article 174(1) of the Constitution of India is directory in the matter of summoning of the House. Article 174(2) clearly says that the Governor may from time to time prorogue the House or dissolve the Legislative Assembly. It is evident that the power under Article 174 is to be exercised by the Governor in his discretion. If that were not so, it would lead to piquant situation to the detriment of proper and effective working of democratic principles of Government. For instance, if there is a motion of No Confidence pending Page 97 of 103 discussion in the Assembly, the Chief Minister in order to steer clear of the situation, may ask the Governor to prorogue the House. Similarly, where the Government is in a minority in the Legislative Assembly, the Chief Minister by the instrument of aid and advise to the Governor, can so manipulate the machinery of proroguing the House as to perpetuate his Council of Ministers and power, avoiding from time to time, facing the Assembly. Likewise, the Speaker being faced with the situation of removal (as in the instant case) may refuse to cooperate with the Governor in holding of the Assembly Session. Therefore, the Governor is under a duty to exercise his power under Article 174 only in his discretion, after considering all facts and relevant matters in summoning or preponing the summoning of the House. It is not for the Writ Court to examine as to whether the exercise of discretionary power of the Governor is in accordance with and will promote democratic principles inasmuch as any such exercise by the Court would take it to the political arena.
[82] The law is well settled that even an erroneous decision or interpretation of the rules or procedure by the Administrator cannot be the subject matter of scrutiny in a Court of law. Further, no writ can lie in a matter pertaining to holding of a Session of the Assembly and/or the resolutions passed in such Session and the nature of proceedings conducted therein. Article 212 of the Constitution clearly prohibits any such judicial interference.
[83] Under Article 159 of the Constitution, the Governor is to preserve, protect and defend the Constitution and the law of the country. He is the only person on the spot who can take stock of the situation and take appropriate action including the preponing the Session of the Assembly for consideration of the resolution for removal of the Speaker. He can exercise such powers in his discretion if he has reasons to believe that the Speaker and the Chief Minister are trying to prevent such a situation because they do not have the support of Page 98 of 103 majority to defeat such a resolution in the House. When No Confidence Motion is passed against the Government and the Ministry refuses to resign or when the Governor has a reasonable ground to believe that the Chief Minister no longer enjoys the Confidence of the Legislative Assembly and he is no longer prepared to face the Assembly immediately on one pretext or other or when the Governor believes that the Ministry is trying to maintain its majority in the Legislative Assembly by unfair means or when the Governor believes that the Speaker in order to prevent or delay his removal is not willing to hold Session of the House without any further delay, the Governor can always exercise his discretion and take appropriate action, which is not subject to judicial review in view of Article 163 of the Constitution.
[84] The Governor's constitutional role cannot be viewed as a frozen one. Neither the basic constitutional provisions nor the empirical situation at any point of time can adequately explain the reality of the Gubernatorial position. This role is essentially to be viewed as an evolving one. One crucial variable that determines the Governor's role is the state of domestic politics of a particular State. Viewed in this light, the Governor's role, in reality, is shaped and reshaped by the dynamics and the dominant forces and factors in State politics. Hence, it is futile to look for a standard role of the Governor that is of universal validity. It is not for the Court exercising its writ jurisdiction under Article 226 of the Constitution to sit over the action of the Governor to decide as to whether the Governor in a particular situation fairly exercise his discretion or that whether his exercise of discretion was in furtherance of democratic principles and fair democratic practices.
[85] One of the constitutional responsibilities of the Governor of a State is to summon the assembly after he prorogues. This is an event which must necessarily Page 99 of 103 follow the initiate prorogation and as such summoning in the peculiar circumstances is the responsibility of the Governor of the State. He issues a message which is practically equal to the agenda of the session which has to be transacted in the summoned session of the assembly. The point to be considered is that what was the scope and content of the impugned message given by the Governor under Article 175(2). The fact situation and the materials on the basis of which the Governor had issued the message under Article 175(2) has been noted above. There is no presumption that there is any distinctiveness or specialty about summoning assembly and which could be discussed in the session. Even otherwise the agenda having been prescribed by the Governor in the message indicated above, it was not open to the Speaker to bye-pass the same and to question the validity of the same invoking writ jurisdiction. The agenda of the summoned assembly having been fixed by the Governor under Article 175(2), it is the primordial duty of the Speaker as holder of the office under the Constitution to obey such a mandate and act in accordance with the itemized agenda therein. The expression "for the removal of the speaker" has to be given its full significance. A resolution for the removal of the Speaker becomes operative when a notice of motion for the Assembly of the Speaker is given and is taken up for consideration.
[86] As has been held by our own High Court in Nipam acha Singh (Supra), the Speaker in rejecting motion in notice of petitioners for removal of Speaker from office exercising jurisdiction not vested on him but in legislative assembly and had violated constitutional rights of the petitioners.
[87] As noted above, the Apex Court in Satyapal Dang (Supra) held that, Article 174 does not state what procedure is to be followed towards exercising power under it. Having regard to the facts and circumstances involved in the instant case, it cannot be said that the Governor was misdirected in preponing the Page 100 of 103 Assembly session and fixing the agenda items under Article 175(2) of the Constitution of India. If in the kind of situation that was prevailing in the State of Arunachal Pradesh as highlighted in all the I.As including IA No. 2899/2015 filed in WP(C) No. 7998/2015, the Governor took the impugned action, it cannot be said to be unconstitutional so as to warrant interference exercising power of judicial review under Article 226 of the Constitution of India.
[88] As regards the challenge to the notification dated 16/12/2015 removing the petitioner involved in WP(C) No. 7745/2015, the same was passed in the preponed Assembly session and the same was pursuant to the motion for removal that was passed by 33 MLAs of 60 members house voting in favour of the resolution for removal of the Speaker and the resolution was notified vide Annexure-12 to the IA No. 2838/2015 on 16/12/2015. Once the impugned decisions of the Governor exercised under Article 174(1) and 175(2) of the Constitution of India are upheld, the transaction of the business in the preponed assembly session including the resolution adopted by the 33 MLAs in the house of 60 members constitute majority towards removal of the Speaker which is also not under challenge will also have to be upheld.
[89] Above being the position that has emerged from various facts pleaded by the parties to this proceeding and the legal position emerged from various decisions referred to above and so also the constitutional provisions applicable to the issues involved, I am of the considered opinion that no interim order is warranted as has been prayed for in the writ petitions and consequently while rejecting the said interim prayer, the interim order passed on 17/12/2015 shall stand vacated.
[90] Although, it was submitted that this proceeding is confined to the prayer for vacation of the interim orders but as indicated above, all the I.As are not only Page 101 of 103 for vacation of the interim orders but also for dismissal of the writ petitions on the ground of non-maintainability. That apart, the learned counsel for the parties extensively argued on the merit of the case and nothing further is left for further argument touching the merit of the writ petitions. The reasons for vacating the interim order are also the reasons for rejection of the writ petitions In such a situation, no purpose will be served by keeping the writ petitions alive.
[91] As regards the submissions made by Mr. Jain, learned counsel representing the Governor for expunction of the adverse remarks appearing in the interim order, I am of the considered opinion that with the vacation of the interim orders, the said issue no longer survives. I only quote the following observations of the Apex Court in R .A. M ehta (Supra) to which the learned counsel representing the application in I A No. 30/ 2016 has referred to :-
"104. This Court has consistently observed that Judges m ust act independently and boldly w hile deciding a case, but should not m ake atrocious rem arks against the party, or a w itness, or even against the subordinate court. Judges m ust not use strong and carping language, rather they m ust act w ith sobriety, m oderation and restraint, as any harsh and disparaging strictures passed by them , against any person m ay be m istaken or unjustified, and in such an eventuality, they do m ore harm and m ischief, than good, therefore resulting in injustice. Thus, the courts should not m ake any undeserving or derogatory rem arks against any person, unless the sam e are necessary for the purpose of deciding the issue involved in a given case. Even w here criticism is justified, the court m ust not use intem perate language and m ust m aintain judicial decorum at all tim es, keeping in view alw ays, the fact that the person m aking such com m ents, is also fallible. M aintaining judicial restraint and discipline are necessary for the orderly adm inistration of justice, and courts m ust not use their authority to "m ake intem perate com m ents, indulge in undignified banter or scathing criticism ". Therefore, w hile form ation and expression of honest opinion and acting thereon, is a necessity to decide a case, the courts m ust alw ays act w ithin the four-corners of the law . M aintenance of judicial independence is characterized by m aintaining a cool, calm and poised m annerism , as regards every action and expression of the m em bers of the Judiciary, and not by using inappropriate, unw arranted and contum acious language. The court is required "to m aintain sobriety, calm ness, dispassionate reasoning and poised restraint. The concept of loco parentis has to take forem ost place in the m ind of a Judge and he m ust keep at bay any uncalled for, or any unw arranted rem arks." (Vide:
State of M .P. v. N andlal Jaisw al, reported in AI R 1987 SC 251; A.M . M athur v. Pram od Kum ar Gupta, reported in AI R 1990 SC 1737; State of Bihar & Anr. v. N ilm ani Sahu, reported in (1999) 9 SCC 211; I n the m atter of: "K" A Judicial Officer, reported in AI R 2001 SC 972; "RV", a Judicial Officer, reported in AI R 2005 SC 1441; and Am ar Pal Singh v. State of U.P., reported in AI R 2012 SC 1995)."Page 102 of 103
[92] All the Interim Applications i.e .A. No. 2838/2015, IA No. 2839/2015, IA No. 2843/2015 in WP(C) No. 7745/2015 are allowed by vacating the interim order dated 17/12/2015 as prayed for in the said applications. Consequently, I,A. No. 30/2016 in WP(C) No. 7745/2015 and I.A. No. 2899/2015 in WP(C) No. 7998/2015 also stand disposed of in terms of this judgement and order.
JUDGE Sukham ay/ M ukut/ Kalita Page 103 of 103