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Editorial Today – SC quashed Arunachal Governor’s order

editorial-79

Issue A Constitution Bench of the Supreme Court has unanimously quashed Arunachal Pradesh Governor order.

Constitutional Provision According to Article 356, President’s rule can be imposed in a state if a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.

Governor’s report or otherwise Generally, the governor sends a report in this regard to the Centre and it’s his/her report that forms the basis for the Union Cabinet’s recommendation to the President for invoking Article 356 to impose President’s rule.

Governor’s discretion While sending a report to the Centre, the governor is not supposed to go by the advice of the state cabinet and is exercises his or her own discretion.

Implications of President’s rule Once President’s rule is imposed, the assembly ceases to function and the state comes under the Central government’s direct control.

SR Bommai case In the SR Bommai case, the Supreme Court ruled in 1994 that courts can’t question the Union Cabinet’s advice to the President.

Bihar assembly dissolution case The Supreme Court in January 2006 declared the dissolution of the Bihar assembly as null and void in the Buta Singh case.

What happened in Arunachal Pradesh The winter session of the state assembly was scheduled to take place from 14 to 18 January, 2016. On 10 December, 2015, the Governor suddenly advanced the session to December 16.

Why this judgement is unprecedented This judgment is unprecedented in that it is the first time the apex court used its powers of judicial review to restore a government when its successor government is still in place.

Rulings about governor in this judgement The Governor had claimed discretionary powers under Article 163 of the Constitution to issue his order dated December 9, 2015 to advance the session.

 

Issue

  • A Constitution Bench of the Supreme Court has unanimously quashed Arunachal Pradesh Governor order to advance the Assembly session from January 14, 2016 to December 16, 2015, a gubernatorial move which triggered a political crisis in the sensitive border State and culminated in the declaration of President’s rule on January 26.

 

Constitutional Provision

  • According to Article 356, President’s rule can be imposed in a state if a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
  • But the expression “breakdown of constitutional machinery” has not been defined in the Constitution. It can happen due to political reasons such as hung assembly, the government losing majority in the assembly, failure of any political grouping to form a government, defections and break-up of coalition or because of insurgency etc. Whatever may be the reason, the President has to be satisfied about of breakdown of constitutional machinery in the state.

 

Governor’s report or otherwise

  • Generally, the governor sends a report in this regard to the Centre and it’s his/her report that forms the basis for the Union Cabinet’s recommendation to the President for invoking Article 356 to impose President’s rule.
  • However, the provision also says that the President can take such a decision even “otherwise” (i.e. even in the absence of governor’s report). But in any case, the President has to be satisfied that the constitutional machinery has broken down in the state.

 

Governor’s discretion

  • While sending a report to the Centre, the governor is not supposed to go by the advice of the state cabinet and is exercises his or her own discretion. On the contrary, the President has to go by the advice of the Union Cabinet. But he can seek clarifications from the council of ministers.

 

Implications of President’s rule

  • Once President’s rule is imposed, the assembly ceases to function and the state comes under the Central government’s direct control. The assembly is generally kept in suspended animation. The powers of the state assembly become exercisable by or under the authority of Parliament. The executive power shifts from the council of ministers to the governor.
  • Once imposed, President’s rule must be approved by Parliament within a period of two months. It can’t last for more than six months unless its extension is approved by Parliament.

 

SR Bommai case

  • In the SR Bommai case, the Supreme Court ruled in 1994 that courts can’t question the Union Cabinet’s advice to the President but they can question the material behind the satisfaction of the President regarding breakdown of constitutional machinery. It also said that the use of Article 356 was justified only when there was a breakdown of constitutional machinery and not that of administrative machinery.

 

Bihar assembly dissolution case

  • The Supreme Court in January 2006 declared the dissolution of the Bihar assembly as null and void in the Buta Singh case. It held that the governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for imposing President’s rule. The “drastic and extreme action under Article 356” cannot be justified on whims and fancies of the governor and the council of ministers should not accept it as “gospel truth”.

 

What happened in Arunachal Pradesh

  • The winter session of the state assembly was scheduled to take place from 14 to 18 January, 2016. On 10 December, 2015, the Governor suddenly advanced the session to December 16. He also issued an order to take up on priority basis a notice served by the leader of Opposition for impeachment of Speaker Nabam Rebia.

 

  • Refusing to abide, Rebia moved the Gauhati High Court challenging the governor’s notification. Meanwhile, 21 rebel congress MLAs joined 11 BJP MLAs and 2 independents to hold the session on the said dates in a makeshift assembly. With the deputy speaker, also a rebel, presiding, the ‘session’ impeached the Speaker, “passed” a no-confidence motion against CM Tuki and ‘elected’ Pul as ‘leader of the House’

 

  • Tuki and MLAs who support him called this session and its decisions ‘illegal’ and ‘unconstitutional’. The High Court put a stay on all the decisions taken in the ‘session’. Speaker Rebia then moved the SC where a Constitutional bench heard this matter.

 

Why this judgement is unprecedented

  • This judgment is unprecedented in that it is the first time the apex court used its powers of judicial review to restore a government when its successor government is still in place.
  • Though there are several judicial precedents, led by the nine-judge Bench in the historic S.R. Bommai judgment, which condemned the arbitrary use of Article 356 invoking President’s rule, none have gone so far as to restore a government ousted by emergency.

 

Rulings about governor in this judgement

  • The Governor had claimed discretionary powers under Article 163 of the Constitution to issue his order dated December 9, 2015 to advance the session.
  • The court dismissed the Governor’s defence that his summoning the Assembly without the Cabinet’s nod could never be considered “anti-democratic.
  • The court said that a Governor is not an elected representative, but only an executive nominee whose powers flow from the advice of the Cabinet. His tenure depends on the pleasure of the President. Using discretionary powers to summon or dissolve Assembly sessions without the aid and advice of the Chief Minister and his Cabinet is unconstitutional.
  • Also said that “The Governor is not an ombudsman for the Legislature nor the Speaker’s mentor. The Governor cannot require the Speaker to discharge his functions in the manner he considers constitutionally appropriate”.
  • The court held that what happens within the four walls of a political party is none of the Governor’s concern. “The Governor must remain aloof from any disagreement, discontent or dissension, within parties. The activities within a party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations,”
  • Court also said that “There is no justification for a Governor to be disturbed about proceedings in connection with the disqualification of MLAs under the Tenth Schedule. Because the Governor has no role therein…. Any action taken by the Governor, based on the proceedings being carried on under the Tenth Schedule, would be a constitutional impropriety”.
  • A Governor cannot use his discretionary powers to run a parallel administration or a ‘diarchy’ challenging the existence of an elected State government.
  • In case a “remarkable situation” arises in the political spectrum of the State, the Governor’s duty is only to report to the President and wait for a decision.
  • A Governor can act in his own discretion if his actions are justified by or under the Constitution… but the Governor’s exercise of this discretion would be open to challenge where it can be shown to be perverse, capricious, fallacious, extraneous or for a motivated consideration.
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  • warlord

    nicely explained. You da boss bruh