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Nabam Rebia And Bamang Felix v/s Deputy Speaker: Governor's Discretion And Judicial Review


Nabam Rebia, And Bamang Felix v/s Deputy Speaker

  • In the 2011 Arunachal Pradesh election, Nabam Tuki won with a full majority of 49 seats out of 60.
  • In 2015, 20 Congress members, 11 BJP members, and two independent MLAs, rebelled against the newly elected chief minister.
  • On November 19th 2015, 13 members of the Assembly addressed a letter to the Governor to express their dissatisfaction with the Speaker and the Government, while 21 Congress MLAs also declined to attend party meetings, alleging the Chief Minister's incompetence. They claimed that the Chief Minister had drastically mismanaged cash and wasted money.(i)
  • Without consulting the Chief Minister or the Council of Ministers, the Governor postponed the assembly meeting from January 14th 2016 to December 16th 2015 , impeached the Speaker Nebam Rebia, and nominated a Congress rebel as deputy speaker, who then annulled the disqualification order of 14 rebel congressmen.
  • The removal of Speaker Rebia was contested in the Gauhati High Court on grounds of "an extraneous and inappropriate exercise of constitutional authority."(ii)
  • On January 5, 2016, the High Court postponed the disqualification of Congress MLAs and dismissed the Speaker's petition, stating that neither the Governor's discretion under Article 163 nor the legislative procedure under Article 212 may be contested in court, and that both are legally legitimate. The acts of the Governor and the Assembly were not arbitrary.
  • Following that, an appeal was filed with the Supreme Court, and the case was assigned to a 5-judge panel for further scrutiny.
'Bench: Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose, N.V. Ramana

Issues raised in the case:'
  1. Whether the decision of the Governor to prepone the Assembly session was constitutional?
  2. Whether the Speaker's act of disqualification of MLA's when a motion for his impeachment was pending before the house was constitutional?
Contention of respondent:
Referring to Article 163 of the constitution, the respondent brought light to the "on the aid and advice of the Council of Ministers with the Chief Minister as the head" as part of the decision making of the governor, but later submitted that 163(2) itself contemplates to the "absolute discretion" of the governor that is not subject to judicial review.

Article 174, which gives the Governor the right to call the Assembly, can be seen as one of the articles requiring the Governor to act at his own discretion.

Contention of petitioner:
The petitioner seeking review from the high court verdict, claimed that the Governor's participation and conduct exceeded the statutory power limit, violating Articles 161 (Pardoning power of the governor) and 163(2) (discretion of the government is final).

Further contending that it is "constitutionally impermissible" for a Speaker to decide on disqualification of a member under anti-defection law while a no-confidence vote is ongoing against him.

Petitioners relied on the overall concept of responsible governance, arguing that governance should be carried out solely by elected representatives who are accountable to the public, i.e. the Council of Ministers, rather than the governor, who is a nominated official. According to Art.174 (Sessions of the State Legislature, prorogation and dissolution.) of the Constitution, the power to summon cannot be coupled with a general discretionary power.

In a 331-page decision, the 5-judge constitutional bench of Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose, and N.V.Ramana, JJ., quashed the Governor's order dated 9.12.2015 preponing the 6th session of the Arunachal Pradesh Legislative Assembly by a month without consulting the Chief Minister, Council of Ministers, or the Speaker, for violating Article 174. On July 13, 2016, a five-judge court unanimously ruled that the Governor's authority to call, dissolve, and advance a session is subject to judicial review.

On behalf of Justice P C Ghose, Justices Khehar and Dipak Misra authored the main decision, and Justices N V Ramana and M B Lokur individually delivered concurring views.

The Court also overruled the verdict of the Guwahati High Court, which found that the Governor's notice was unconstitutional because it breached Article 163 read with Article 174 of the Indian Constitution.

The Supreme Court referenced Article 163 of the Constitution, which states that the Governor of a State must act in collaboration with the Council of Ministers. He has the authority to act only when required to do so. They noted that the Governor does not have vast discretionary powers and is necessarily bound by the constitutional framework. According to Article 163, the Governor may only exercise this power with the assistance of the Council of Ministers and Chief Minister.

Article 174 empowers the Governor to convene, prorogue, or dissolve the State legislature. The Court stated that the Governor's authority did not extend beyond the authorities granted to him under Article 174 of the constitution, and thus he could not convene the House, decide its legislative agenda, or address the legislative assembly without first consulting the Chief Minister or the President.

The five-judge bench came to the conclusion that:

  1. the discretionary power given to the governor is limited;
  2. to the scope postulated in Article 163(1);
  3. its ambit is not open to broader interpretation;
  4. there shouldn't be any conflict of interest;
  5. its exercise shouldn't be final and immune from judicial review. (iii)

The Court then addressed whether the Speaker could disqualify rebel MLAs while a resolution to remove him was being debated in the House. While answering this matter, the court reviewed the Speaker's powers, position, and duties, as well as Art.179(c), which specifies that the Speaker may be removed from office by a vote of the Assembly carried by a majority of "all the then members of the Assembly."

A 14-day notice is also necessary before such a motion is made in the House, and the Speaker may only be removed by a resolution agreed on by a majority of all the assembly's members at the time. The Court concluded, therefore, that the Speaker's decision to disqualify rebelled MLAs amounted to an attempt to circumvent the votes of "all the then members", and as such, the Speaker's decision was unconstitutional.

As a result, the Supreme Court reinstalled the previous government and declared all of the Governor's actions that led to the implementation of President's Rule unconstitutional. The Court also ordered a floor test to determine the Government's majority, restoring the floor test's credibility.

Relevant cases:
  • Rai Sahib Ram Jawaya Kapur v. The State of Punjab(1955)(iv)
    This case is undeniably crucial in India for understanding the administrative framework of the constitution and the division of authority among the three bodies of government, namely the Legislature, Executive, and Judiciary. The decision is also instructive in determining the extent to which an executive body might infringe on a private right with little or no formal justification.

    By acquiring examples of an organ that appear to infringe on the abilities and elements of other organs but are simply incidental to its basic powers or capacities, the example increases awareness of the division of force.
  • Mahabir Prasad Sharma v. Prafulla Chandra Ghose(1968)(v)
    In Mahabir Prasad Sharma v. Prafulla Chandra Ghose, the High Court said that the Governor's pleasure is unrestrained by any condition or limitation, and the withdrawal of the Governor's pleasure is entirely at the Governor's discretion.
  • State of Punjab v. Satya Pal Dang((1969 AIR 903)(vi)
    The speaker delayed the state legislature for many months in State of Punjab v. Sat Pal Dang (1969 AIR 903), despite the fact that the budget session had to be concluded before March 31st in order for money to be drawn from the consolidated fund. The Governor elected to prorogue the assembly, issuing an act that said that neither house could be adjourned until all financial business was completed. The Court rejected the governor's accusation of malafide motive, ruling that his conduct were justified in light of the unique circumstances.
  • Samsher Singh v. State of Punjab(1974)(vii)
    Even when the exercise of discretion is concerned, a seven-judge Bench of the Apex Court in Samsher Singh v. State of Punjab (1974) has decided that the Governor may do so only "in harmony with his Council of Ministers".
The case Nabam Rebia, and Bamang Felix v. Deputy Speaker, (2017) 13 SCC 332 is a landmark case in the scope of judicial review. This case held that Governor's powers to summon, dissolve and advance a session is within the scope of judicial review. The apex court pronounced that article 163(2) needs to be comply with the "aid and advice" of the council of ministers and is under the scope of judicial review. The bench also ordered that the Speaker cannot disqualify members when a motion Is pending against him.

This case is also relevant historically. The Court effectively overturned the President's administration and reinstalled the prior State government led by Nabam Tuki for the first time in its history. However, Chief Minister Tuki was swiftly voted out of office in a floor test, and the Court's decision was politically reversed.

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