Arunachal Crisis: How Courts and Constitution have Defined Role of Governor
On December 9, Arunachal Pradesh Governor Jyoti Prasad Rajkhowa, a former chief secretary of Assam, sent a one-page message to the state Legislative Assembly. The message, sent under Article 175 (2) of the Constitution, essentially issued terse instructions to the House on how to function.
Apart from bringing forward the Assembly’s Winter Session to December 16 from the scheduled date of January 14, the Governor ordered that a resolution seeking the removal of Speaker Nabam Rebia “shall be the first item on the agenda of the House”, and the Deputy Speaker “shall preside over the House from the first moment of (its) first sitting”. The resolution on the Speaker’s removal must be discussed and voted upon in the very first sitting, the Governor said.
According to the Congress, which is in power in Arunachal, some of its MLAs had given a notice last month for the removal of the Deputy Speaker, also of the Congress, accusing him of anti-party activities. Soon afterward, MLAs from the opposition BJPgave a notice for the removal of the Speaker.
On Wednesday — the first day of the session — there was unprecedented drama in Itanagar as supporters of Chief Minister Nabam Tuki blocked entry to the Assembly, but the other group — 11 BJP MLAs, 2 Independents, and 21 Congress dissidents, including Deputy Speaker T N Thongdok — met elsewhere and “impeached” Speaker Rebia.
In Delhi, top Congress leaders met President Pranab Mukherjee to protest against the Governor’s actions, and asked him to issue “appropriate directions/advisory.
Article 175 does empower the Governor to address and send messages to the House or Houses (in states with a Legislative Council). The Governor can send messages “whether with respect to a Bill then pending in the Legislature or otherwise”, and the House “shall with all convenient despatch consider any matter required by the message to be taken into consideration”.
However, as held by the Supreme Court in many cases, the power of the Governor is not absolute. He is bound to act on the advice of the state cabinet. In its landmark judgment in Union of India vs Valluri Basavaiah Chaudhary and Others, a Constitution bench of the Supreme Court in 1979 held that the Governor was a “constitutional head of the State Executive, and has, therefore, to act on the advice of the Council of Ministers”.
The court said: “The Governor has a right of addressing and sending messages… under Arts. 175 and 176, and of summoning, proroguing and dissolving under Article 174, the State Legislature, just as the President has in relation to Parliament… In all these matters the Governor as the constitutional head of the State is bound by the advice of the Council of Ministers.”
The same judgment said: “…The right of the Governor to send messages… under Article 175(2), with respect to a Bill then pending in the legislature or otherwise, normally arises when the Governor withholds his assent to a Bill under Article 200, or when the President, for whose consideration a Bill is reserved for assent, returns the Bill… As already stated, a ‘Bill’ is something quite different from a ‘resolution of the House’ and, therefore, there is no question of the Governor sending any message under Article 175(2) with regard to a resolution pending before the House or Houses of the Legislature.”
Through this judgment, the court had set aside a judgment of the Andhra Pradesh High Court, which had, in the same matter, held that the term “legislature” in Article 252(1) referred to both Houses of Legislature — Assembly and Council — and the Governor.
More recently, in the context of the tussle between the then UPA-appointed Governor of Gujarat Kamla Beniwal and then Chief Minister Narendra Modi’s government over the appointment of Justice R A Mehta as Lokayukta, the SC held that the Governor enjoys complete immunity under Article 361(1) of the Constitution, and his actions can’t be challenged since he acts only upon the advice of the Council of Ministers.
“If this was not the case, democracy itself would be in peril. The Governor is not answerable to either House of State, or to the Parliament, or even to the Council of Ministers, and his acts cannot be subject to judicial review. In such a situation, unless he acts upon the aid and advice of the Council of Ministers, he will become all powerful and this is an anti-thesis to the concept of democracy,” the court held.
“Under… our Constitution, the Governor is synonymous with the State Government, and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act, or under the exception(s) provided in the Constitution itself,” it said.
The court also laid down the rules of conduct for all wings of government, including the Governor: “…Successful functioning of the Constitution depends upon democratic spirit, i.e. a spirit of fair play, of self restraint, and of mutual accommodation of different views, different interests and different opinions of different sets of persons.”