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Wednesday, July 20, 2016

On 3.11.2015, the Governor issued an order summoning the 6th session of the Assembly, to meet on 14.1.2016 in the Legislative Assembly Chamber at Naharlagun. The instant order was passed by the Governor, on the aid and advice of the Chief Minister, and in consultation with the Speaker of the House. The 6th session of the House was preponed by the Governor from 14.1.2016 to 16.12.2015, by an order dated 9.12.2015 indicating inter alia the manner in which the proceedings of the House should be conducted. In its support, the Governor issued a message on 9.12.2015. These actions of the Governor, according to learned senior counsel for the appellants, demonstrate an extraneous and inappropriate exercise of constitutional authority. The above order and message of the Governor, without the aid and advice of the Council of Ministers and the Chief Minister, constitute the foundation of the challenge raised by the appellants.=

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISIDCTION
                    CIVIL APPEAL NOS. 6203-6204__OF 2016
               (Arising out of SLP(C) Nos. 1259-1260 of 2016)

Nabam Rebia, and Bamang Felix                            … Appellants

                                   versus

Deputy Speaker and others                                … Respondents





                               J U D G M E N T

Jagdish Singh Khehar, J.

1.    Leave granted.

2.     The  5th  session  of  the  Arunachal  Pradesh  Legislative  Assembly
(hereinafter  referred  to  as,  the  Assembly/House)   was   concluded   on
21.10.2015.  On 3.11.2015, the Governor issued an order  summoning  the  6th
session of the Assembly, to meet on 14.1.2016 in  the  Legislative  Assembly
Chamber at Naharlagun.  The instant order was passed  by  the  Governor,  on
the aid and advice of the Chief  Minister,  and  in  consultation  with  the
Speaker of the House.  The 6th session of the  House  was  preponed  by  the
Governor  from  14.1.2016  to  16.12.2015,  by  an  order  dated   9.12.2015
indicating inter alia the manner in  which  the  proceedings  of  the  House
should be conducted.  In its support,  the  Governor  issued  a  message  on
9.12.2015.  These actions of  the  Governor,  according  to  learned  senior
counsel for the appellants,  demonstrate  an  extraneous  and  inappropriate
exercise of constitutional authority.  The above order and  message  of  the
Governor, without the aid and advice of the Council  of  Ministers  and  the
Chief Minister, constitute the foundation of the  challenge  raised  by  the
appellants.
3.    When hearing in these appeals  commenced,  the  impression  given  out
was, that the sequence of facts relating to the affairs  of  the  House  and
the MLAs, by itself would be sufficient to  establish,  that  constitutional
responsibilities were exercised in such manner, as would be  sufficient  for
this Court to strike down the same.   The  same  position  was  espoused  on
behalf of the respondents, who also advocated that the  factual  background,
would establish the legal and  constitutional  validity  of  the  Governor’s
actions.  And also, that the Governor had passed  the  impugned  order,  and
issued the impugned message, bona fide. The narration  of  facts,  therefore
assumes significance.
The foundation of the appellants case:
The first sequence of facts:
4.    In order to project the correct narrative (as per  the  understanding,
of learned counsel, representing the appellants), towards  highlighting  the
factual position, it was urged, that the political posturing  in  the  State
of Arunachal Pradesh, commenced after the Governor – Jyoti  Prasad  Rajkhowa
assumed charge on 1.6.2015.
5.    It was suggested, that when the Governor assumed office, there  was  a
brewing discord amongst members  of  the  ruling  Indian  National  Congress
(hereinafter referred to as the INC). Only a few  days  after  the  Governor
took over charge, the President of the Arunachal Pradesh Congress  Committee
– Padi Richo addressed his first  communication  to  the  Chief  Minister  –
Nabam Tuki (on 18.6.2015), inviting his attention to reports  received  from
party workers, regarding breach of party discipline.   On  the  same  lines,
another letter was addressed by the party President, to the  Chief  Minister
on 1.9.2015.  The text of the same is extracted hereunder:
“In reference to my earlier letter  no.nil  dated  18/6/2015  in  connection
with reports received from party workers regarding breach of  discipline  by
some of the Congress legislators by their active involvement  in  anti-party
activities, which has been seriously viewed  by  the  AICC  and  APCC.   But
despite of that, it has been reported by  party  functionaries  and  workers
that some of the  congress  legislators  are  still  actively  indulging  in
indiscipline and various anti-party activities.
Therefore, all the Congress legislators are requested to refrain  themselves
from  indulging  in  such   anti-party   activities   and   maintain   party
discipline.”

6.    It was submitted, that strenuous efforts were ongoing,  to  quell  the
intra-party dissidence.  It was asserted, that resignation  letters  of  two
MLAs belonging to the INC  –  Wanglam  Sawin  and  Gabriel  D.  Wangsu  were
accepted on 6.10.2015, whereupon, they stood removed from  the  House.   The
details  of  the  ongoing  disruptive   activities   within   the   Congress
Legislature Party, as also, the involvement of the Governor, was  sought  to
be demonstrated, by placing reliance  on  two  further  communications,  the
first of which (dated 11.10.2015), was addressed by  the  removed  MLAs,  to
the Governor.  A relevant part of the same, is reproduced hereunder:
“Sub: Commission of an enquiry into the forceful resignation.
Your Excellency,
With great pain and indignation, we the undersigned Members  of  Legislative
Assembly of the Sixth Arunachal Pradesh Legislative Assembly would  like  to
apprise  your  benign  authority  about  some   disturbing,   degraded   and
inglorious conduct of the leader  of  the  Congress  Legislative  Party-cum-
incumbent Chief  Minister  and  his  supporters  for  favour  of  your  kind
information and necessary action please;
Your Excellency, on 14th Sept 2015  at  around  5  pm,  we  were  repeatedly
informed through phone calls requesting us to join  “a  get-together  dinner
party”, purportedly on the invitation of  Mr.  Mama  Natung,  HMLA,  at  his
residence at Senki View area, Itanagar.  Some 18  MLA  colleagues  from  the
Congress Party visited his residence for the dinner but were  instead  asked
to join an informal discussion on the prevailing political crisis  faced  by
the Congress led State Government under the Chief Ministership of Mr.  Nabam
Tuki.  All members participated in  the  discussion  which  revolved  around
support for Mr. Tuki and further the issue  of  initiating  actions  against
any member not adhering to the decision to be loyal to Tuki  was  discussed.
Also it was decided  to  form  a  group  of  ‘like-minded’  legislators  and
accordingly formed S-18 or Super-18, besides forming  one  Action  Committee
tasked to take necessary actions against those MLAs who do not abide by  the
decisions taken jointly by the group.  Thereafter, we  had  our  dinner  and
left.
Your Excellency, on 16th September’ 2015, we were  informed  by  Mr.  Nyamar
Karbak, MLA who was the coordinator of S-18 to join a dinner  party  at  the
official residence of Hon’ble Chief  Minister  Mr.  Nabam  Tuki.   Like  the
other day, this time also 17 of  us  went  together  to  attend  the  dinner
hosted by the Chief  Minister  which  amongst  other  included,  i)  Gabriel
D.Wangsu, ii) Mr. Wanglam Sawin, iii) Phurpa Tsering, iv) Mr. Jambey  Tashi,
v) Mr. Tirong Aboh, vi) Mr. Dikto Yikar, vii) Mr.  Mama  Natung,  viii)  Mr.
Pani Taram, ix) Mr. Nikh Kamin, x) Mr. Nyamar Karbak, xi) Mr. Bamang  Felix,
xii) Mr. Techi Kaso, xiii) Mr. Tatung Jamoh, xiv)  Mr.Alo  Libang,  xv)  Mr.
Tapuk Taku, xvi) Kumsi Sidisow, xvii) Mrs. Karya Bagang.
Like the preceding night, some of the  MLAs  like  Mr.  Nyamar  Karbak,  Mr.
Bamang  Felix,  Mr.  Mama  Natung  and  Mr.  Nikh  Kamen  suddenly   started
discussion on the political matter and requested 17 of us  to  support  Tuki
and to protect his leadership from being ousted by the  dissident  group  of
the  party.   Most  of  us  participated  in  the  said  discussion   though
reluctantly with certain reservations in our mind and heart.  The  gathering
instead of being a dinner party was turning more into  a  political  meeting
and some MLAs, to our anxiety and panic, aggressively tried to persuade  and
prevail upon us thereby, putting all of us in a very stressful  and  awkward
situation.  There was little room left for further discussion or dissent.
Thereafter, some of our MLA colleagues came up with a  strange  proposal  to
sign and submit irrevocable resignation letter in the hand of  HCM  to  show
our loyalty to his leadership.  We were baffled and  dumbstruck  by  hearing
the undemocratic, dangerous and inappropriate proposition placed  before  us
by him.  All of us were confused and couldn’t gather the courage to  protest
against the said proposal  in  the  presence  of  the  CM,  Speaker  of  the
Assembly and PCC president.  Then some of the loyalists of Mr.  Tuki  namely
Nyamar Karbak  and  Bamang  Felix  holding  ready  and  prepared  stereotype
resignation letters in their hands came to us and handed over to each of  us
and asked us to put our signatures.  The whole drama took place in  presence
of Mr. Nabam Tuki, CM  and  Mr.  Padi  Richo,  President,  Pradesh  Congress
Committee and putting us in strained mental torment and duress compelled  us
to hurriedly sign the resignation letter without even  reading  the  content
thereon, against our will  and  against  the  spirit  of  democracy.   After
getting us to sign the papers they collected the same  and  handed  over  to
the Chief Minister Mr. Nabam Tuki.
Furthermore, we were given strict instruction and direction not  to  mention
the date in our signatures.  And just before the  dinner,  after  concluding
the meeting and signing of the  resignation  letters,  surprisingly  Speaker
Nabam Rebia to arrived and joined in the dinner party at the  CM’s  official
residence.  Soon  thereafter  a  group  namely  ‘S-18’  was  formed  in  the
Whatsapp.  However, both of us were removed from the group  on  6th  October
2015.
Now under the above circumstances, we would like to inform  you  that  those
resignation letters were signed by  all  17  of  us  under  complete  duress
having obtained illegally and wrongfully.  In  this  regard,  the  following
arguments may be taken into considerations;
i) That we were invited to attend an informal dinner  party  hosted  by  the
HCM for 17 of us.  It was neither a CLP  meeting  nor  a  party  meeting  to
discuss politics as only 17 of  us  were  invited  for  the  dinner  at  the
official bungalow of the HCM.  It is equally true that we were  invited  for
a dinner and not for signing our own resignation letters.
ii) That none of us could muster the  courage  and  spirit  to  protest  the
unholy and vicious agenda of the HCM that too in his presence  and  that  of
the Speaker, both holding high constitutional posts, and President, PCC.
iii) That all the resignation  letters  signed  by  us  were  stereotype  or
identical copies  of  one  single  letter  which  speaks  volume  about  the
dishonest intention of the HCM, Speaker and his supporters as he  was  ready
with the resignation letters which again  established  that  everything  was
planned before hand with  the  help  and  support  of  the  Speaker  of  the
Legislative Assembly to obtain our signatures in the resignation letters  by
hook or crook and instill fear in our mind.  Invitation to the dinner  party
was only a ploy to trap us in the larger  game  plan  to  secure  the  Chief
Ministerial Chair.
iv)  These  disgracing,  undemocratic  and  unethical  action  has   brought
disgrace to the benign office of the  Chief  Minister  and  the  Speaker  as
their conduct are completely unbecoming of a Chief Minister as well  as  for
holding the prestigious and dignified chair of the Speaker.   Their  illegal
and wrongful act of obtaining our signatures by  putting  us  in  duress  is
nothing but criminalization of politics and brute murder  of  democracy  and
its values and principles  for  their  vested  personal  interest  which  is
punishable under relevant law of the land.
v) If an elected representative is not allowed to take any decision  out  of
his conscience and free will it tantamounts to  murder  of  the  very  basic
fabric of democracy which will bear negative impact in overall  contribution
to the state’s governance, and above all that would be murder of democracy.
vi)  The  reason  quoted  in  the  resignation   letter   is   also   highly
inconceivable  and  ludicrous.   How  could   any   elected   representative
including us after being elected by the people would tender the  resignation
on such irrational, unjust and unfounded ground.
Your Excellency, vide our letter dated 01-10-2015 addressed to  the  Speaker
of the  Legislative Assembly which we had submitted to  the  office  of  the
Speaker on  05-10-2015  before  noon,  we  have  elucidated  the  facts  and
circumstances under which our signatures in  the  resignation  letters  were
obtained on 16-09-2015 at the official bungalow of CM and that the same  was
obtained  under  duress  against  our  consent  and  free  will,   therefore
requested the Speaker not to accept the resignation letter and to treat  the
same as invalid, null and void until and unless we come in person to  submit
the resignation letters.
However, ironically,  after  submission  of  our  letter,  it  came  to  our
knowledge  that  the  Speaker  had  without  following  the  provisions   as
enshrined in Article 190(3)(b) of the Constitution and Rule  200(2)  of  the
Rules of  Procedure  and  Conduct  of  Business  in  the  Arunachal  Pradesh
Legislative Assembly had purportedly issued a notification dated  01-10-2015
accepting our resignation and declaring our respective seats to have  fallen
vacant.  The said notification was published in the  evening  of  05-10-2015
only immediately after submission of our withdrawal letters to the Speaker.
Article 190(3)(b) of the Constitution reads as follows;
xxx              xxx              xxx
Rule 200(3) of the Business Rules reads as follows;
xxx              xxx              xxx
Thus, the abovementioned provisions casts an obligation on  the  Speaker  to
make inquiry regarding the voluntariness and genuineness of the  resignation
letters when the resignation letters are not submitted in person  but  since
the Speaker himself is a party to the whole episode playing  hand  in  glove
with the CM, therefore, he choose to do away with  the  laid  provisions  of
the law.
xxx              xxx              xxx
Your Excellency, since the notification dated 01-10-2015 was issued  by  the
Speaker without following  the  established  principles,  therefore  we  had
approached the Hon’ble Gauhati High Court challenging the said  notification
vide WP (C) No.6193/2015. The Hon’ble Gauhati High Court  after  considering
the whole facts and circumstances of the  case  was  inter-alia  pleased  to
stay the operation of the impugned notification dated 01-10-2015 vide  order
dated 07-10-2015.  The Hon’ble Court further observed that  prima-facie  the
requirement of Rule 200(3) of the Procedure and Conduct of Business and  the
incorporated proviso to Article 190(3)(b) of the Constitution  do  not  seem
to have been complied and directed the Election Commission not to  take  any
action on the basis of the said notification.
xxx              xxx              xxx
Your  Excellency,  along  with  us,  15  other  MLAs  had  also  signed  the
resignation letters and handed over the same to the CM in  the  presence  of
the PCC Chief, but why only our resignation  letters  were  entertained  and
accepted by the Speaker.  What happened to  the  other  resignation  letters
signed by 15 other MLAs?  Why no action has been  taken  till  date  on  the
resignation letters of other 15 MLAs who till date has not  withdrawn  their
resignation letters?
xxx              xxx              xxx
We, therefore, request your Excellency to look into the issue  seriously  to
unearth the unholy nexus between the Chief  Minister,  the  Speaker  of  the
Legislative Assembly and PCC, President.  And why  the  Chief  Minister  has
adopted such wrongful and illegal means to obtain  the  resignation  letters
from us, and what compelled him for such  a  criminal  act  is  the  million
dollar question.
In view of the above facts and circumstances, it is our  humble  request  to
your august  office  to  immediately  enquire  into  the  whole  resignation
incident through independent investigating agency like CBI because both  the
culprits are holding high constitutional  posts,  i.e.  Chief  Minister  and
Speaker and there cannot be free and fair  investigation,  if  conducted  by
the State Investigation agency and take stringent  action  against  all  the
persons involved in the whole crime  by  booking  each  and  everyone  under
appropriate provision of law.”

According to learned counsel, it  is  shocking  and  distressing,  that  the
above letter should have been addressed to the Governor, who has no role  in
intra-party affairs. The above letter and inferences, according  to  learned
counsel, were suggestive of political motivation.  The second  communication
dated 11.10.2015 was addressed (to the Governor) by  20  MLAs  of  the  INC,
jointly with two Independent  MLAs.   A  relevant  extract  of  the  instant
communication is reproduced below:
“Sub: Complaint against the policy of absolutism of the Chief Minister.
Your Excellency,
We the incumbent MLAs of INC party amongst them some are  sitting  Ministers
in the  present  ruling  dispensation  of  the  State  being  perturbed  and
disillusioned with the current dismal and  grim  state  of  affairs  of  the
State Government and the tyrannical style of incumbent Chief  Minister  Shri
Nabam Tuki in running the government would  with  profound  veneration  most
humbly like to state the following few lines for favour of your perusal  and
necessary appropriate action;
His Excellency, it has been learnt through the print media  that  the  Chief
Minister is contemplating to literally drop four  veteran,  experienced  and
highly regarded leaders like i) Mr. Chowna Mein, Agriculture  Minister,  ii)
Mr. Kamlung Mossang, Food & Civil  Supply  Minister,  iii)  Mr.  Kumar  Wai,
Cooperation Minister and Mr. Wanglin  Lowangdong,  Social  Welfare  Minister
from the council of Minister without articulating any cogent reasons  either
implicit or explicit for taking such a drastic  and  unpleasant  measure  at
this particular junction when the  State  is  experiencing  acute  financial
crisis having occasioned due to the  misrule,  shortsightedness,  autocratic
policies and wrong decisions of the incumbent Chief  Minister  coupled  with
excessive  unplanned,  wasteful  expenditures  and  financial  mismanagement
leading the state to a complete stalemate  with  development  activities  in
the State in a complete standstill and  clouding  the  State  with  complete
darkness of financial depression.
His Excellency, your benign authority may be well aware  of  the  fact  that
the State under the leadership of Mr. Nabam Tuki, CM has been reeling  under
the burden of humongous  financial  liabilities,  insurmountable  debts  and
burden of overdrafts for last 3 years due to gross and  unprecedented  level
of corruption, fraudulent misappropriation and embezzlement of  the  project
specific funds and revenues of the government.
His Excellency, it is very unfortunate that there  are  serious  charges  of
criminal misconduct, nepotism and corruption  against  Shri  Nabam  Tuki  on
numerous counts which are as follows;
Awarding contract to his family and  relatives  by  abusing  his  power  and
position without floating tenders and secured pecuniary gain by illegal  and
dishonest means in  clear  violation  of  codal  formalities.   The  Hon’ble
Gauhati High Court taking cognizance of the allegations against Nabam  Tuki,
CM vide Judgement and Order dated 21-08-2015 in WP  (C)  No.  1267/2010  has
directed the CBI to register a case and conduct  investigation  against  the
alleged misconduct of Shri Nabam Tuki in awarding  contracts  to  his  wife,
sister-in-law, brother and other near relatives without calling  tenders  by
abusing his official  position  as  a  Minister.   The  Hon’ble  Court  also
directed the CBI to probe and investigate the alleged UCO  bank  transaction
of Rs.30,00,000/- (Rupees Thirty  Lacs)  only  allegedly  deposited  in  the
account number of Mr. Nabam Tuki by Mr. N.N.  Osik,  the  then  Director  of
Food & Civil Supplies.
Serious allegation against the incumbent CM who also holds  the  charges  of
Finance, Planning and Disaster & Relief  Ministries  for  gross  misuse  and
embezzlement of relief funds under NDRF & SDRF.   In  this  connection  also
two PILs are pending in the Hon’ble Gauhati High  Court  being  numbered  as
PIL No. 62/2015 & 65/2015  and  vide  order  dated  06/08/2015  the  Hon’ble
Gauhati High Court was pleased to admit  both  the  PILs  by  rejecting  the
preliminary  objection   of  the  State   Government   on   the   issue   of
maintainability of the cases and made an observation that “there appears  to
be some prima facie case to be enquired into the justification of the  State
in making assessments regarding natural disaster”. In  this  connection  the
Controller and Auditor General of India is also conducting an  enquiry  into
the allegation.
Gross misuse  and  siphoning  of  project  specific  funds  under  Centrally
Sponsored Scheme (CSS) as a result of which  majority  of  the  projects  or
works under abovementioned schemes has not been completed and/or  are  under
progress.  Worst some have even not been commenced and will  never  see  the
light of the day because all the grant and assistance provided  by  the  GOI
has been whimsically and capriciously diverted and  misused  under  Non-Plan
head and PDS.  Though majority of  the  works  and  projects  has  not  been
completed but the funds have been  completely  exhausted  creating  colossal
financial liabilities to the tune of Rs.6911.55 Crores.  That  is  the  sole
reason, why the state government is unable to furnish the UC as demanded  by
the GOI. The Ministry of DONER has instituted  an  enquiry  to  unearth  the
degree of corruption.
The  State  Government  is  reeling  under  the  burden  of  overdraft   for
consecutively two years.  The Government committed an  overdraft  of  Rs.(-)
449.76  Crores  during  2013-14  and  Rs.  (-)  581.38  Crores  during  last
financial year 2014-15.  The current overdraft till May’  2015  is  Rs.  (-)
222 Crores bringing the total overdraft to the  tune  of  Rs.  (-)  1,253.14
Crores.  The amount of overdraft are to be repaid by  the  State  government
to the RBI with 13% interest rate which in turn will affect the  development
of the State, as the Government will be forced to  utilize  the  plan  money
for the repayment of the overdraft.
Your Excellency, overdraft,  suspension  of  government  bank  transactions,
inordinate delay in disbursement of pension, GPF, TA/DA and  other  benefits
to the government employees, transfer of funds in the civil deposits of  the
government, non-payment of bills to the contractors  and  suppliers  against
the completed works and non-payment of stipend to the  students  has  become
an order of the day.
Your Excellency, Shri Nabam Tuki, CM is adopting all sorts  of  illegal  and
unlawful means in order to quell and crush the voices of dissent who  having
been disillusioned and disenchanted with his misdeed and  style  of  running
the State Government in a despotic and  autocratic  manner  has  intensified
their demand in recent days for a change in  the  leadership.   He  is  even
indulging  in  criminal  and  immoral  activities  to   secure   his   Chief
Ministerial post.  It is very disheartening that Shri Nabam  Tuki,  CM  with
the support of handful of his protagonist invited  17  MLA’s  for  a  dinner
party at his official bungalow and has  forcefully  obtained  signatures  of
the 17  MLA’s  in  a  resignation  letters  authored  and  produced  at  his
residence by putting  them  under  intense  duress  and  pressure  with  the
objective to use the same as a tool to blackmail them  not  to  shift  their
loyalty or allegiance.
xxx              xxx              xxx
7.     Your  Excellency,  in  a  democratic  and   parliamentary   form   of
government, the legislators of the single largest party in  the  legislative
assembly select a leader amongst themselves to lead them who is called as  a
leader of the legislative party and the selected leader accordingly  becomes
the Chief Minister and  forms  a  government.   If  the  leader  upon  being
selected loses the goodwill, trust and confidence  of  the  legislators  who
have selected him, the legislators can change or  replace  the  said  leader
with more efficient, capable and competent leader  to  run  the  government.
In context to the present prevailing political scenario of the State the  CM
has lost the goodwill, trust and confidence of majority of  the  legislators
which can gauged from the CLP meeting which was  held  on  29-09-2015  where
only 22 party legislators attended the meeting.   Immediately  thereafter  a
Cabinet was also summoned by the CM and similarly the meeting  not  attended
by majority of the Cabinet Ministers and was less than the necessary  quorum
for taking any major decisions, therefore,  it  is  the  CM  who  should  be
tendering his resignation papers rather than dropping highly  respected  and
decorated sitting Ministers who have serving the State to the best of  their
capability  and  capacity  without  any  complaint  or  blemish   on   their
integrity.
xxx              xxx              xxx
Therefore, in view of the above facts and circumstances of the case,  it  is
our collective earnest request and appeal to your  esteemed  office  not  to
entertain the decision of the incumbent CM  as  he  is  running  a  minority
government and enjoys the support of only handful of legislators as  he  has
lost the confidence and goodwill of the majority  of  the  legislators.   If
the CM is allowed to prevail then it will tantamount to murder of  democracy
and parliamentary form of government.
With regards,
                                  signed by 20 INC MLAs and
2 Independent MLAs.
                                        Yours faithfully,”

It was submitted, that despite the position being  clear,  that  a  Governor
has no role in internal party  feuds,  details  as  noticed  in  the  letter
extracted above, were being provided to  the  Governor.   Illustratively  it
was submitted, that the manner of functioning of the Chief Minister, or  the
likely change in the composition of the Cabinet,  or  the  manner  in  which
financial affairs of  the  State  were  being  handled,  or  the  prevailing
allegations of corruption against the Government,  and  such  like  matters,
are beyond the realm of cognition and responsibility of the  Governor.   And
yet, were being brought to the notice of the Governor.  It was  urged,  that
all this was being done, because of the belief  of  the  dissident  faction,
that the Governor would act thereon.  This, because of  the  tacit  support,
by MLAs belonging to the Bharatiya Janata  Party  (hereinafter  referred  to
as, ‘the BJP’). It was highlighted, that the involvement of two  Independent
MLAs along with 20 MLAs of the INC, in the letter dated  11.10.2015,  needed
to be pointedly noticed.   Because  it  demonstrates,  not  only  dissension
within the party, but also the involvement of support from  outsiders.   The
connotations of the above second letter, according to learned counsel,  were
also suggestive of political motivation.
7.    Having highlighted the alleged divisive activities  of  the  breakaway
group of MLAs within the INC, itz was submitted, that the party President  –
Padi Richo, was right in perceiving, that  the  above  actions  amounted  to
breach of party discipline.   The  party  President  accordingly,  addressed
individual communications dated 12.10.2015, to the defaulting MLAs,  wherein
he brought to their attention, the party’s impressions. A  relevant  extract
of one of the said communications is being reproduced hereunder:
“It  has  been  reported  by  party  functionaries  and  workers   of   your
constituency  and  the  Block/District  Congress  Committee  that  you   are
indulging in various activities which amounts to  breach  of  discipline  of
the Party under Claus 4(a), (b)  and  (c)  of  the  Constitution  of  Indian
National Congress.  In this connection I have also issued a Circular to  all
Party MLAs and Leaders on 1st September 2015 making  it  clear  that  action
will be taken against any such leader indulging in  indiscipline  and  anti-
party activities.
The matter was placed before the Executive  Committee  of  the  PCC  on  6th
October 2015 and the Committee is of the view that there is  a  prima  facie
breach of discipline from your side.  You are hereby called upon to  explain
the charges made against you within 15 days  time  as  to  why  disciplinary
action as it may deem fit is not taken against you.”
Your failure to reply within the above stated time  will  be  considered  as
that you have no explanation or reply to be given,  and  appropriate  action
as deemed fit, will be taken against you without any further notice.”

8.    At the instant  juncture,  a  meeting  inviting  all  members  of  the
Congress Legislature Party was convened  for  8.11.2015,  which  was  to  be
attended by representatives of the central leadership.  An  extract  of  the
communication dated 5.11.2015, calling  the  above  meeting,  is  reproduced
below:
“No.CM(AP – 11/2015 dtd  05th  Nov,  2015[:]  Please  convey  the  following
message by quickest means as under[.] quote[.]  From Shri Nabam Tuki,  Chief
Minister to all  Congress  MLAS/Parliamentary  Secretaries/Ministers[.]   As
directed by  Shri  V.  Narayanasami,  General  Secretary,  AICC,  In-Charge,
Arunachal Pradesh a meeting of all members  of  Congress  Legislature  Party
(CLP)  convened  on  8th  November,  2015(Sunday)  at  4.30  PM  repeat  8th
November,2015 at 4.30 PM at Rajiv Gandhi Bhawan, Itanagar[.]   Meeting  will
be attended by [.] One[.] Shri V Narayanasami, General Secretary,  AICC,  In
Charge[.]  Two[.] Dr.  Jayakumar,  AICC  Secretary,[.]  Three[.]  Shri  Padi
Richo, President PCC among  others[.]  Request  to  attend  the  meeting  as
directed by Shri V Narayanasami,  GS,  AICC  positively[.]  unquote[.]  Plse
confirm N.T.T.”

Immediately on receipt of the aforesaid invitation, the  same  21  dissident
MLAs, addressed a joint statement to the party leadership, that  they  would
not be attending  the  meeting  (scheduled  for  8.11.2015),  as  the  Chief
Minister – Nabam Tuki had lost all moral credibility to lead the House.   An
extract of the contents of above joint assertion is reproduced below:
“…It has come to our notice that a CLP meeting  has  been  convened  on  8th
November 2015.  There are already differences of  opinion  with  regards  to
autocratic way of functioning and disrespect  for  inner  democracy  of  the
party with the present CLP leader Mr. Nabam  Tuki.   Were  clearly  denounce
his legitimacy as the leader of  Congress  Legislature  Party  of  Arunachal
Pradesh.  Under this circumstances any meeting called under  his  leadership
do not carry any substance and holds no water.  He has lost  all  the  moral
credibility to lead the party in the house.
Therefore, we  the  undersigned  Congress  legislature  party  members  have
unanimously  decided  not  to  attend  the  CLP  meeting  called  under  the
leadership of Mr. Nabum Tuki.”
                                               signed by 21 MLAs of the INC.

9.    On 12.10.2015, the President of the Congress Legislature Party  issued
a show cause notice to 19 MLAs  belonging  to  the  INC,  for  indulging  in
activities, indicative of breach of sincerity  and  commitment  towards  the
INC.  Another communication was also issued to all  MLAs  belonging  to  the
INC, to attend a party meeting, at the residence of the leader  of  Congress
Legislature  Party.   It  was  submitted,  that  the  same  21   legislators
belonging to the  INC  again  addressed  a  joint  statement  to  the  Chief
Minister, wherein they contested his legitimacy, as leader of the INC.   The
said legislators, again refused to attend the meeting.  They also  issued  a
press note, to openly announce their aforesaid stance.  In  a  meeting  held
on 8.11.2015, the central leadership of the  Congress  Party  affirmed,  its
support to the Chief Minister –  Nabam  Tuki.   It  was  pointed  out,  that
thereafter,  another  notice  was  issued  for  holding  a  meeting  of  the
legislators, belonging to the INC, on 18.11.2015.  Yet again,  the  same  21
MLAs did not attend the meeting, and reiterated their point  of  view,  with
reference to the leadership of the  Chief  Minister.   It  was  asserted  on
behalf of the appellants, that this was a revolt of sorts, within  the  INC.

10.   In  their  narration,  learned  counsel  also  pointed  out,  that  on
16.11.2015, a notice of resolution for the removal of the Deputy  Speaker  –
Tenzing Norbu Thongdok, was moved.  The  same  was  allegedly  moved  by  16
MLAs, belonging to the INC.  As a  matter  of  clarification,  it  would  be
pertinent to mention, that the Deputy Speaker had been elected  as  an  MLA,
on the nomination of the INC.
11.   On 19.11.2015, a notice of resolution for the removal of  the  Speaker
of the Assembly – Nabam Rebia, was moved by the 13 MLAs –  11  belonging  to
the BJP, and 2 Independent MLAs.   It  was  submitted,  that  the  aforesaid
notice was issued under Article 179(c) read with Article 181, and Rules  151
and 154 of the Rules of Procedure and Conduct of Business of  the  Arunachal
Pradesh  Legislative  Assembly,  framed  under  Article   208   (hereinafter
referred to as, the ‘Conduct of Business Rules’).  The notice  depicted  the
following grounds for the removal of the Speaker:
“(i) The Constitution and democracy  are  not  safe  in  the  hands  of  the
Speaker,  as  he  has  unseated  two  members  of  the   Arunachal   Pradesh
Legislative Assembly;
(ii) That he has flagrantly violated the Constitution;
(iii) That Speaker has not been functioning as a neutral person;
(iv) That the Speaker has been appointing secretarial staff/persons  without
following administrative procedure.”

12.   Yet another meeting  of  MLAs  belonging  to  the  INC,  was  held  on
18.11.2015.  The allegedly errant 21 MLAs belonging  to  the  INC,  did  not
again attend the meeting.  It was asserted, that in order to take  stock  of
the ongoing activities of the 21 dissident  MLAs,  another  meeting  of  the
Congress Legislature Party was held on 3.12.2015, wherein  the  participants
took  note  of  the  prevailing  situation,  by  recording   the   following
proceedings:
“This meeting of the Congress Legislature Party, Arunachal Pradesh, held  on
today, the 3rd December at 4.00 P.M. at  Itanagar  unanimously  resolves  to
request the Party  Leadership  and  the  Congress  High  Command  at  Delhi,
bringing to your kind attention a letter dated 2nd November 2015  signed  by
21 elected members of the Congress Legislature Party Arunachal  Pradesh,  in
clear undemocratic, indiscipline and  unheard  manner  dictating  terms  and
excuses  for  absenting  and  voluntarily  distancing  from   the   Congress
Legislature Party, Arunachal Pradesh against procedure  established  by  the
rules and regulations of the party, challenging the  democratically  elected
Congress Legislature Party leaders authority, instead  of  participating  in
the meeting as  members  of  the  Congress  Legislature  Party  and  express
whatever opinion, suggestion or grievances which can be resolved or  decided
by the Congress Legislature Party in its meeting.
It is also requested that the Congress High Command may make it  clear  that
whether the signatories of the letter are staying back in Delhi as  per  the
advice of  the  AICC  in  spite  of  the  fact  that,  the  above  group  of
Legislatures voluntarily abstained from the  earlier  CLP  meeting  held  on
16th November, 2015, which was attended by the General  Secretary,  AICC  in
charge of Arunachal Pradesh Shri V. Narayanaswamy, Dr. Jayakumar,  Secretary
AICC and Shri Padi Richo President APCC on the same grounds.
The meeting of the Congress Legislature Party also bring to  the  notice  of
the Party Leadership that the activities of  the  above  21  MLAs  who  have
formed a separate group distancing themselves from the  Congress  Party,  is
working against the interests of the Party and  the  democratically  elected
Government of the Party, which is taking all-round efforts  to  develop  the
State and working untiringly to improve and help  the  people  of  Arunachal
Pradesh, which got elected with an unprecedented  mandate  in  the  Assembly
election held on 2014.”

13.   It was submitted, that the  said  21  dissident  MLAs,  were  publicly
proclaiming, that V. Narayanasamy, a former  Union  Minister,  and  the  All
India Congress Committee in-charge for North Eastern States, was  supporting
them in their cause.  V. Narayanasamy had to address  identical  letters  to
all the 21 dissident MLAs, on 6.12.2015, to  repudiate  their  assertion  of
his support.  The text of the aforesaid communications is reproduced below:
“AICC has  received  copies  of  letters  dated  15.11.2015  and  02.12.2015
addressed to the Chief Minister written by you and  20  other  MLAs  of  the
Congress Legislative Party, Arunachal Pradesh  in  which  you  have  claimed
and alleged that I have advised you  to  stay  back  in  Delhi  to  bring  a
solution to the present stalemate in the Party.
2.    The above statements are false and against the directions given by  me
and the Party Leadership at Delhi and Itanagar.  In the CLP meeting held  on
16.11.2015 at Itanagar, I categorically made  a  statement  that  the  Party
Leadership is wholly supporting the present Chief Minister, Shri Nabam  Tuki
who is CLP leader having majority and if  any  grievance,  any  of  the  CLP
member is having can be sorted out in the  Party  forum  instead  of  giving
public statements and working against the Chief Minister  or  the  Govt.  of
Arunachal Pradesh.
3.    You have also willfully did not attend three consecutive CLP  meetings
and boycotted the same.
4.    Instead of listening to my statement  and  direction,  you  have  made
contrary  statements  and  false  allegations  against  me  and  the   Party
Leadership which is not acceptable.”

The President of the Arunachal Pradesh Congress Committee – Padi  Richo  was
required to deliver the said letters to the 21 dissident MLAs, and also,  to
obtain their acknowledgement.  Which he did.
14.   It was highlighted, that the aforesaid  activities  of  the  dissident
members of the INC, compelled the President – Padi  Richo,  to  again  issue
identical letters to the concerned MLAs on 7.12.2015, with  a  copy  to  the
Chief Whip of the Congress Legislature Party – Rajesh Tacho.   The  text  of
the above letter is reproduced below:
“AICC  has  taken  serious  note  of  your  activities  against  the  party,
continuous attacks, defamatory  and  unfounded  allegations  and  propaganda
against the Chief  Minister  and  the  Council  of  Ministers  of  Arunachal
Pradesh and the Congress Party calculated  to  lower  the  prestige  of  the
party, inspite of our  repeated  directions  not  to  indulge  in  any  such
activities which amounts to breach of discipline of the party.
By such continuous actions and activities you have  distanced  yourself  and
from your conduct we have come to the conclusion that you  have  voluntarily
given up your membership  of  Indian  National  Congress  and  the  Congress
Legislature Party.
I am enclosing herewith he letter received from the General Secretary,  AICC
vide dated 06/12/2015, addressed to you in this regard.”

15.   It was also pointed out, that a very  important  event,  sponsored  by
the respondents, took shape on 19.11.2015.  The 13 MLAs who had  issued  the
notice of  resolution  for  the  removal  of  the  Speaker  –  Nabam  Rebia,
forwarded  its  copy  to  the  Governor,  with  a  covering   letter   dated
19.11.2015, wherein,  they  requested  the  Governor,  to  prepone  the  6th
session of the Assembly.  Their prayer was aimed at expediting  the  removal
of the Speaker  –  Nabam  Rebia.  This,  according  to  the  appellants,  is
apparent from the fact, that the request for preponement was sought  on  the
ground, that the issue of removal  should  be  taken  up  immediately  after
completion of the 14 days notice, mandated under  Article  179(c).   The  13
MLAs also pressed, through their above letter, that  the  party  composition
in the House, be not  altered,  till  the  resolution  for  removal  of  the
Speaker, was finally disposed of.
16.   In narrating the facts, it was pointed out, that  in  the  meeting  of
the members of  the  Congress  Legislature  Party  held  on  3.12.2015,  the
activities  of  the  dissident  members  of  the  party  were   highlighted,
indicating their rebellious posturing.  The central leadership of  the  INC,
at this juncture, again supported the leadership of Chief Minister  –  Nabam
Tuki.  The central leadership  further  took  note  of  the  fact,  that  21
members of the Congress Legislature Party,  had  distanced  themselves  from
the  party.   It  was  therefore,  that  the  Chief  Whip  of  the  Congress
Legislature Party – Rajesh Tacho, filed a petition under  Paragraph  2(1)(a)
of the Tenth Schedule on 7.12.2015, seeking disqualification of 14  MLAs  of
the INC. The disqualification of the 14 MLAs had been sought on the  ground,
that they had snapped their ties with the INC, by their refusal  to  respond
to, or associate with the political leadership in the State, and  for  their
having expressly refused to  attend  the  meetings  of  the  party  held  on
29.9.2015, 8.11.2015,  18.11.2015  and  3.12.2015.   And  also,  for  having
issued  a  press  note,  to   publicly   air   their   views.    The   above
disqualification petition, was  presented  to  the  Speaker.   It  would  be
relevant to mention, that the name of the Deputy  Speaker  –  Tenzing  Norbu
Thongdok, figured at serial no.14, in  the  disqualification  petition.   On
receipt of the  aforesaid  petition,  the  Speaker  issued  notices  to  the
concerned 14 MLAs, on 7.12.2015 itself.  The 14 MLAs belonging to  the  INC,
were required to submit their response(s), and thereupon  to  appear  before
the Speaker, on 14.12.2015.
17.   It was contended  on  behalf  of  the  appellants,  that  the  factual
position noticed above, triggered the stage for a political upmanship.   Not
between the legislators of the INC and the BJP, but between two factions  of
the INC.  With one faction of the INC legislators,  garnering  support  from
BJP legislators.  It was alleged, that the  BJP  legislators,  in  order  to
topple the Government in  power,  were  extending  support  to  the  faction
opposing the continuation of the Chief Minister – Nabam Tuki.
The impugned orders:
18.   The Governor of the State of Arunachal Pradesh, according  to  learned
counsel, without consulting  the  Chief  Minister  –  Nabam  Tuki,  and  his
Council of Ministers, or even the Speaker – Nabam  Rebia,  issued  an  order
dated 9.12.2015, whereby, he  preponed  the  6th  session  of  the  Assembly
scheduled to be held on 14.1.2016, to 16.12.2015.  The instant order  passed
by the Governor, has been assailed by the appellants.   A  relevant  extract
of the order, is reproduced below:
“WHEREAS I, Jyoti Prasad Rajkhowa, the Governor of  Arunachal  Pradesh,  had
issued an Order on 3 November, 2015 under clause (1) of article 174  of  the
Constitution of India summoning the Sixth Legislative Assembly of  Arunachal
Pradesh to meet for its sixth session at 10.00 AM on  14  January,  2016  in
the Legislative Assembly Chamber at Naharlagun:
WHEREAS subsequent to the issue of the aforesaid order by me,  a  notice  of
resolution for removal of Shri Nabam Rebia, from the office of  the  Speaker
of the Arunachal Pradesh  Legislative  Assembly  has  been  received  on  19
November, 2015 with a copy endorsed to me by the notice givers  namely  Shri
Tamiyo Taga, the Leader of Opposition in the said  Assembly  along  with  12
other Members of the Legislative Assembly:
WHEREAS the notice of resolution for removal of  the  Speaker  as  aforesaid
has complied with the notice period of 14  days  on  the  4  December,  2015
(excluding the day of notice and 4 December, 2015 – 14  days  clear  notice)
as required under the first proviso to article 179(c)  of  the  Constitution
of India:
WHEREAS it has been judicially  held  in  Nipamacha  Singh  and  Others  Vs.
Secretary, Manipur Legislative Assembly and Others [AIR 2002 Gauhati  7]  as
under:
“13… the powers to consider or  to  reject  a  motion  for  removal  of  the
Speaker from his office did not vest in the Speaker but in  the  Legislative
Assembly under article 179 and 181 of the Constitution…”
WHEREAS in view  of  the  above  judicial  order,  it  is  a  Constitutional
obligation on my part to ensure that the resolution for removal  of  Speaker
is expeditiously placed before the Legislative Assembly:
WHEREAS I have also received  a  request  from  the  notice  givers  of  the
resolution for removal of the Speaker that the sitting of the sixth  session
of the Sixth Arunachal Pradesh Legislative Assembly  originally  slated  for
14 January, 2016 may be advanced so as  to  enable  the  House  to  urgently
consider the resolution for removal of the Speaker:
WHEREAS, the time gap between the 4 December, 2015 and the intended date  of
first sitting of the sixth session i.e. 14 January, 2016 i.e.  the  earliest
date on which the resolutions for removal of Speaker can  be  taken  up  for
consideration by the House, is 42 days (including 4 December,  2015  and  14
January, 2016):
WHEREAS any such notice of resolution in  relation  to  an  Officer  of  the
Legislative Assembly (Speaker or Deputy Speaker) needs to  be  expeditiously
considered by the Legislative Assembly 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 Assembly and  (iii)
the utmost immediacy with which the cloud cast by the notice  of  resolution
over the continuance of the incumbent in the office of the  Speaker  has  to
be cleared:
WHEREAS I am personally satisfied that the time  gap  between  the  date  of
compliance of the notice with the notice  period  prescribed  in  the  first
proviso to article 179(c) of the Constitution of India and the date  of  the
intended first sitting of the ensuing session, as computed in the  aforesaid
manner, is long and unreasonable and may  cause  damage  to  the  goals  and
ideals of  provisions  in  the  Constitution  of  India  and  the  Rules  of
Procedure of the House concerning speedy disposal of such resolutions:
WHEREAS 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 India to a date earlier  than  the  date  mentioned  in  the
Summons  dated  3rd  November,  2015   for   facilitating   the   House   to
expeditiously consider resolutions for removal of  Speaker,  I  may  not  be
bound by the advice of the Council of Ministers, since  the  subject  matter
of the notice for removal of the Speaker is not a matter, falling under  the
executive jurisdiction of the Chief Minister, Arunachal Pradesh not  such  a
subject matter finds a mention in the Rules of  Executive  Business  of  the
Government  of  Arunachal  Pradesh  framed  under   article   166   of   the
Constitution of India thereby restricting the role of the Chief Minister  in
advising  me  in  exercise  of  my  powers  under  article  174(1)  of   the
Constitution of India only to the matters  for  which  the  Chief  Minister,
under the Constitution of India, is responsible”.
AND NOW THEREFORE –
In exercise of powers conferred upon me by clause (1) of article 174 of  the
Constitution of India, I,  Jyoti  Prasad  Rajkhowa,  Governor  of  Arunachal
Pradesh do herby modify the order issued by me under the said  provision  of
the Constitution  of  India  on  3rd  November,  2015  summoning  the  Sixth
Arunachal Pradesh Legislative Assembly to meet  for  its  sixth  session  on
14th January, 2016 to the following extent:
(i) For ‘14th January, 2016’ read ‘16th December, 2015’
(ii) For ‘18th January, 2016’ read ‘18th December, 2015’
2. Accordingly, in pursuance of the order issued by me under clause  (1)  of
article 174 of the Constitution of India on 3rd November, 2015  as  modified
herein, the Arunachal Pradesh Legislative Assembly shall now meet  at  10.00
AM  on  16th  December,  2015  at  the  Legislative  Assembly   Chamber   at
Naharlagun.
                                                       JYOTI PRASAD RAJKHOWA
                                                                   Governor”

19.   It was pointed out, that the order extracted above  reveals,  that  it
was prompted by a notice of resolution  for  the  removal  of  the  Speaker,
coupled with the assumption, that a constitutional obligation  was  cast  on
the Governor, to ensure that the above resolution  was  expeditiously  taken
up for consideration.  Because, any delay in taking  up  the  same,  on  the
scheduled date of summoning of the 6th session of the House  (-  14.1.2016),
would “…cause damage to the goals  and  ideals  of  the  provisions  of  the
Constitution, besides the Conduct  of  Business  Rules  …”.  And  that,  the
Governor was not obliged, in the peculiar background referred to  above,  to
seek the advice  of  the  Chief  Minister  and  his  Council  of  Ministers.
Admittedly, the Governor had issued the above order at his own, without  any
aid and advice.
20.   On the same day – 9.12.2015,  the  Governor  issued  a  message  under
Article 175(2) inter alia fixing the  resolution  for  the  removal  of  the
Speaker, as the first item of the House agenda, at the first sitting of  its
6th session.  A relevant extract of the same is reproduced hereunder:
“1.   The resolution for removal of 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 Assembly;
2.    As the resolution for removal of the Speaker shall be the  first  item
of business, at the  first  sitting  of  the  Sixth  Session  of  the  Sixth
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 provisions in article 181(1) of the Constitution of India;
3.    The proceedings of the House on the leave, discussion  and  voting  on
the resolution for removal of the Speaker shall be completed  at  the  first
sitting of the session itself;
4.    The Deputy  Speaker  shall  conduct  the  proceedings  peacefully  and
truthfully  and  shall  communicate  the  results  of  the  voting  on   the
resolution on the same day.  The proceedings of the House on the  resolution
shall be video graphed and an authenticated copy of the video  record  shall
also be sent to me on the same day; and
5.    Until the session is prorogued, no Presiding Officer shall  alter  the
party composition in the House.”

The  above  message  of  the  Governor,  has  also  been  assailed  by   the
appellants.  The message predetermined the procedure which the Assembly  was
mandated to follow, particularly with reference to the notice of  resolution
for the removal of the Speaker.  The message  also  entailed,  that  the  “…
party composition in the House  …”  would  not  be  altered  until  the  6th
session of the House was prorogued.  It was pointed out, that by  the  above
edict,  the  proceedings  initiated  by  the  Chief  Whip  of  the  Congress
Legislature Party under the Tenth Schedule, against  14  MLAs  of  the  INC,
would automatically be put on hold, till the 6th session of  the  House  was
prorogued.
Resumption of, the first sequence of facts:
21.   It was pointed out, that consequent  upon  the  above  development,  a
meeting of the Chief Minister and his Council of Ministers was  convened  on
14.12.2015.  Based on the opinion tendered by the Advocate  General  of  the
State of Arunachal Pradesh dated 12.12.2015,  the  State  Cabinet  resolved,
that the order of the Governor dated 9.12.2015,  was  violative  of  Article
174 read with Article 163 of the Constitution, and Rule 3  of  the  ‘Conduct
of Business Rules’.  It was resolved,  that  the  message  of  the  Governor
dated 9.12.2015, infringed Article 175 of the Constitution, read  with  Rule
245 of the ‘Conduct of Business  Rules’.   In  the  aforesaid  view  of  the
matter, the  Speaker  –  Nabam  Rebia  issued  a  letter  dated  14.12.2015,
bringing the aforesaid legal position to the notice  of  the  Governor,  and
requested the Governor, to allow the House to function, in  consonance  with
the provisions of the Constitution.  The Governor was accordingly urged,  to
convene the 6th session of the Arunachal Pradesh  Legislative  Assembly,  as
was originally scheduled  (-for  14.1.2016).  It  was  submitted,  that  the
aforesaid communication addressed  by  the  Speaker  to  the  Governor,  was
neither responded to nor acknowledged.
22.   It was also the case of  the  appellants,  that  the  disqualification
proceedings against the 14 legislators of the  INC  (initiated  through  the
notice dated 7.12.2015), were taken up for consideration by  the  Speaker  –
Nabam Rebia on 14.12.2015.  None of the 14 MLAs sought to  be  disqualified,
responded to the notice issued to them.  They did not even enter  appearance
before the Speaker on the returnable date –  14.12.2015.   Accordingly,  the
Speaker deferred the disqualification proceedings, to the  following  day  –
15.12.2015. On 15.12.2015, a disqualification order was passed  against  all
the  14  MLAs  of  the  INC,  ex  parte.   As  a  natural   corollary,   the
constituencies from which  the  14  disqualified  MLAs  were  elected,  were
declared vacant (through a notification published in the  Arunachal  Pradesh
Gazette dated 15.12.2015).
23.   It was the pointed contention of the  appellants,  that  on  the  same
day, – 15.12.2015, when the aforesaid 14 MLAs belonging  to  the  INC,  were
declared  disqualified,  in  a  purely  unprecedented  and  unconstitutional
manner, the Deputy Speaker – Tenzing Norbu  Tongdok  quashed  the  order  of
disqualification, even though he  himself  had  been  unseated  through  the
disqualification  order.   Relevant  extract  of  the  above   order   dated
15.12.2015, is reproduced hereunder:
                   “ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY
                          OFFICE OF DEPUTY SPEAKER
No.APLA/D8/68/MEM/2015               15 DECEMBER, 2015

ORDER UNDER TENTH SCHEDULE TO  THE  CONSTITUTION  OF  INDIA  AND  RULE  MADE
THEREUNDER

WHEREAS the Governor of Arunachal Pradesh had  issued  an  order  dated  9th
December, 2015 under article 174(1) of the Constitution of  India  preponing
the Sixth Session of the Sixth Arunachal  Pradesh  Legislative  Assembly  to
16th December, 2015 from 14th January, 2016;
WHEREAS the Governor of Arunachal Pradesh  preponed  the  Sixth  Session  as
aforesaid in order  to  enable  the  House  to  expeditiously  consider  and
dispose of a notice of Resolution for removal of Shri Nabam Rebia  from  the
Office of the Speaker.
WHEREAS the Governor of Arunachal Pradesh had further issued  a  message  to
the Arunachal Pradesh Legislative  Assembly  under  article  175(2)  of  the
Constitution of India, of which, the  following  part  has  significance  of
clipping the abuse of power of the incumbent Speaker.
“Until the session is prorogued the Presiding Officer shall  not  alter  the
party composition in the House.”
WHEREAS the resolution for removal of Speaker Sh Nabam Rebia  is  listed  as
the first item of business at the first sitting  of  Sixth  Session  of  the
Legislative Assembly on the 16th December, 2015;
WHEREAS  the  Speaker  who  is  facing  the  resolution  for   removal   has
deliberately  refrained  from  issuing  the  necessary  Bulletin   part   II
notifying the resolution and also the list of business  for  the  16.12.2015
including the resolution for transaction by the House, despite  the  message
of the Governor and in total defiance of the Constitution, rules, norms  and
ideals thereby subverting the vary Constitution of India;
WHEREAS the Deputy Speaker who was tasked by the  Governor  to  conduct  the
proceedings 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 of procedure of the House, prepared the Bulletin Part II and  list  of
business for 16th December, 2015 thereby conforming to the Constitution  and
the mandate issued by the Governor of Arunachal Pradesh:
WHEREAS the Speaker, in order to escape the consequence  of  the  resolution
of his removal slated for transaction on the 16th December,  2015,  suddenly
a day before the first sitting  of  the  Sixth  Session  i.e.  on  the  15th
December, 2015 disqualified following 14 MLAs  by  2  Notification  of  even
number with No.LA/LEG-37/2015 dated the 15th December, 2015 under the  Tenth
Schedule to the Constitution of India:
Shri Pema Khandu
Shri Kumar Waii
Srhi Kameng Dolo
Shri Markio Tado
Shri Jarkar Gamlin
Shri P.D. Sona
Shri Mutchu Mithi
Shri Kamlung Mossang
Shri Phosum Khimhun
Shri Wanglin Lowangdong
Shri T. Wangham
Shri Lombo Tayeng
Shri Kalikho Pul
Shri T.N. Thongdok

WHEREAS THE Speaker has disqualified the above  14  MLAs  without  following
basic procedure of law and justice in regard to:
Receipt of petition for Disqualification.
Forwarding the petition for comments of the respondents.
Hearing the respondents.
WHEREAS Rule 7(7) of the Members of Arunachal Pradesh  Legislative  Assembly
(Disqualification on Ground of Defection) provides as  under,  according  to
which,  no  MLA  can  be  disqualified  under  the  Tenth  Schedule  without
affording an opportunity of personally being heard:
      “…..neither the Speaker nor the committee shall come  to  any  finding
that a member  has  become  subject  to  disqualification  under  the  Tenth
Schedule without affording a  reasonable  opportunity  to  such  members  to
represent his case and to be heard in person.”
WHEREAS, when a notice of resolution is staring at the face of  Speaker,  he
is completely incapacitated from making  any  order  on  the  membership  of
other MLAs when his own fate is hanging in balance:
WHEREAS the Speaker, as  Constitutional  functionary,  is  not  vested  with
omnipotent powers to cause injury to the powers of Honourable  Governor  who
had already issued a message as  aforesaid  to  maintain  the  integrity  of
party-wise composition of the House:
WHEREAS the Speaker, in committing this mala fide and perverse  action,  has
not even spared the Deputy  Speaker  whom  the  Governor  had  appointed  to
preside over the proceedings of the House when it takes up consideration  of
the resolution for removal of the Speaker:
WHEREAS a Speaker who is facing a removal resolution before  the  House  has
no competence whatsoever  to  pass  instantaneous  orders  under  the  Tenth
Schedule to manipulate a majority in favour of him and also Speaker who  has
been directed to face the House over the resolution for his own removal  has
no power whatsoever to escape his defeat by  throwing  out  chunks  of  MLAs
abusing his powers under the Tenth Schedule:
WHEREAS the orders  of  the  Speaker  disqualifying  14  MLAs  as  aforesaid
squarely challenges the position of the Governor which the  Constitution  of
India had designed him to occupy in the scheme of Constitution:
NOW THEREFORE,
I,  Shri T.N. Thongdok, Deputy Speaker appointed by the Governor to  preside
over the  first  sitting  of  the  sixth  session  of  the  sixth  Arunachal
Legislative  Assembly,  hereby  quash  the  orders  of   the   Speaker   and
notification issued  by  the  Secretary   of  the  Legislative  Assembly  as
aforesaid  disqualifying  above  named  named  fourteen   members   of   the
Legislative Assembly and such orders and notifications may be deemed as  non
est for want of competence on the part of the Speaker who passed  the  order
not only for not following constitutional and legal procedures but also  for
having lost his competence to do so  since  a  notice  of  resolution  dated
19.11.2015 for his removal is pending against  him  and  which  is  to  come
before the house on 16.12.2015.
2. The effect of this order is that all the above named 14 MLAs continue  to
be members of the sixth Arunachal Pradesh  Legislative  Assembly  as  though
the order of the delinquent Speaker is ab initio void.
3. All the aforesaid 14 MLAs shall attend all  the  sessions  of  the  sixth
Arunachal Pradesh Legislative Assembly without let or hindrance.
4. Any authority, civil or  police,  obstructing  their  attendance  of  the
ensuing session shall  be  committing  grave  breach  of  privilege  of  the
legislative assembly as also shall  come  directly  under  the  disciplinary
jurisdiction of all law enforcing authorities including the Governor.

Naharlagun
15th December 2015                           T.N. Thongdok
                                             Deputy Speaker”

24.   It was also the case  of  the  appellants,  that  on  16.12.2015,  the
Deputy  Speaker  conducted  the  proceedings  of  the  6th  session  of  the
Assembly, outside the official premises  of  the  State  Assembly.   It  was
submitted, that the  House  assembled  at  Techi  Takar  Community  Hall,  G
Sector,   Naharlagun.   It   was   contended,   that   at   the    aforesaid
unconstitutional session of  the  Assembly  (presided  over  by  the  Deputy
Speaker), the Deputy Speaker –  Tenzing  Norbu  Thongdok,  passed  an  order
declaring, that the erstwhile Speaker – Nabam Rebia’s announcement that  the
6th session of the Assembly would not commence on 16.12.2015,  was  illegal.
Having so declared,  the  Deputy  Speaker  further  ordered,  that  the  6th
session of the Assembly would be convened as rescheduled  by  the  Governor,
with effect from 16.12.2015.  It was also ordered, that the 6th  session  of
the Assembly would continue  upto  18.12.2015.   The  order  passed  by  the
Governor on 9.12.2015 was thus reiterated, and also given effect  to.   When
the House assembled for the preponed 6th session on 16.12.2015,  the  notice
for  a  vote  of  confidence  against  the  Speaker   was   taken   up   for
consideration.  The resolution for removal of the  Speaker  –  Nabam  Rebia,
was adopted by the Assembly on 16.12.2015  itself.   The  list  of  business
issued by the Deputy Speaker – Tenzing Norbu  Thongdok  provided,  that  the
following motions would be taken up on 17.12.2015:
vote of confidence of the Council of Ministers headed by Shri Nabam  Tuki  –
the then Chief Minister, and

expression of confidence  in  Kalikho  Pul,  to  head  the  new  Council  of
Ministers.

The second sequence of facts:
25.   It is also relevant to mention, that the Speaker – Nabam Rebia,  filed
Writ  Petition  (C)  No.7745  of  2015  before  the  Gauhati   High   Court,
challenging inter alia the Governor’s order dated 9.12.2015, the  Governor’s
message dated 9.12.2015, the alleged holding of the preponed 6th session  of
the Assembly, outside the House on 16.12.2015, the Deputy Speaker –  Tenzing
Norbu Thongdok’s  order  dated  15.12.2015,  quashing  the  disqualification
order of the 14 MLAs,  belonging  to  the  INC,  and  the  resolution  dated
16.12.2015 adopting the resolution  for  removal  of  the  Speaker  –  Nabam
Rebia, and its consequential notification.
26.   A Single Bench of the Gauhati High Court, by an  interim  order  dated
17.12.2015 stayed all the aforementioned impugned decisions, till  the  next
date of hearing – 1.2.2016.  A relevant extract of the interim order  passed
by the High Court is reproduced below:
“23. The disturbing developments in the State of Arunachal  Pradesh  noticed
from the various steps taken since November 2015 indicates  the  tussle  for
power by opposing group and it is clear that  the  Speaker  and  the  Deputy
Speaker of the Assembly are heading the opposite camps.  Understandably  the
action  of  the  MLAs  are  motivated  by   political   exigencies   and   a
manifestation of this can be seen from the FIR  dated  20.12.2015.  In  such
situation,  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.
            xxx              xxx             xxx
25. Taking all the  above  factors  into  account  meanwhile,  the  impugned
decision(s) are ordered to be kept in abeyance until the case is  considered
next.  List on 1.2.2016.”

A perusal of the interim order passed by the High Court, it  was  contended,
reveals that the High Court had entertained a prima  facie  view,  that  the
Governor, was  facilitating  the  political  conflict  between  the  parties
towards a definite direction, in a prejudicial manner.  And also,  that  the
Governor had not acted in a dispassionate manner.   The  appellants,  during
the course of hearing, left no stone unturned, to endorse  the  above  noted
impression of the Single Bench. The  decisions  kept  in  abeyance,  by  the
interim order extracted above, were:
(i)   the order passed by the Governor dated 9.12.2015
(ii)  the message of the Governor dated 9.12.2015
(iii)       the order passed by the Deputy Speaker dated 15.12.2015  setting
aside the disqualification of the 14 MLAs; and

(iv)  the resolution dated 16.12.2015, removing the Speaker.
Thereafter, based on an order obtained by the Joint Registrar (Judicial)  of
the Gauhati High Court from the acting Chief Justice of the High  Court,  on
the administrative side, the above Writ Petition (C) No.7745  of  2015,  was
placed before a different Single  Bench  of  the  High  Court.   During  the
course of hearing of the above writ petition on 19.12.2015, the  Governor  –
Jyoti Prasad Rajkhowa, and the State Government, were impleaded as  parties.
 Two further interlocutory applications bearing nos. 2822 and 2823 of  2015,
were filed by 13 and 7 applicants respectively, seeking impleadment in  Writ
Petition  (C)  No.7745  of  2015,  and  were  allowed.   Through  the  above
applications, the  applicants  besides  seeking  impleadment,  assailed  the
maintainability of Writ Petition (C)  No.7745  of  2015.  They  also  sought
modification/vacation  of  the   interim   order   (staying   the   impugned
decisions), dated 17.12.2015.
27.   It was submitted, that when the Assembly met on  17.12.2015,  and  the
Government headed by the Chief Minister – Nabam Tuki was  declared  to  have
lost confidence of the House, Kalikho Pul, another INC MLA,  was  chosen  as
the new leader of the House.
28.   The learned Single Bench, before whom the matter came to be posted  by
the acting Chief  Justice  of  the  High  Court  (after  the  interim  order
extracted above, had been passed), issued notice  for  modification/vacation
of  the  interim  order  (passed  by  the  previous  Single   Bench)   dated
17.12.2015.  It was submitted, that without any  notice  to  the  appellant,
and without affording an opportunity of hearing to the counsel  representing
the appellant, the successor Single  Bench  restrained  reconvening  of  the
House till 4.1.2016.
29.   The two MLAs belonging to the INC (- Bamang Felix and  Nyamar  Karbak)
also approached the High Court by filing Writ Petition (C) No.7998 of  2015.
 The petitioners in the aforesaid writ petition,  inter  alia  assailed  the
same decisions, as were  impugned  by  Nabam  Rebia  in  Writ  Petition  (C)
No.7745 of 2015 (more or less, on the same  grounds).   The  instant  matter
came up for hearing, before yet another Single Bench of the High Court.   On
its first date of hearing, Writ Petition (C) No.7998 of  2015  was  directed
to be posted for hearing on 4.1.2016, along with the first writ  petition  –
Writ Petition (C) No.7745 of 2015.  Resultantly,  both  the  writ  petitions
came to be posted before the same Single  Bench  (nominated  by  the  acting
Chief Justice, on 18.12.2015).
30.   Dissatisfied with the listing of the matters, the appellant  herein  –
Nabam Rebia,  filed  an  Interlocutory  Application  in  Writ  Petition  (C)
No.7745 of 2015, on the judicial side on 23.12.2015, seeking the recusal  of
the Single Bench, nominated to hear the case by the  acting  Chief  Justice.
Writ Petition (C) No.10 of 2016, was independently filed in the High  Court,
impugning  the  order  of  the  acting  Chief   Justice   dated   18.12.2015
(communicated  by  the   Joint   Registrar   (Judicial),   after   obtaining
instructions from the acting Chief Justice), directing the posting  of  Writ
Petition (C) No.7745 of 2015, before a different Single Bench  of  the  High
Court.
31.   As already noticed above, a prayer for recusal was also  made  to  the
learned Single Bench, before which  the  matter  had  been  posted,  by  the
acting Chief Justice.  The learned Single Bench, was asked  to  recuse  from
the proceedings in Writ Petition (C) No.7745  of  2015.   The  acting  Chief
Justice of the High Court, entertained an Interlocutory Application  with  a
similar prayer, in his chambers on the  administrative  side,  and  rejected
the same on 4.1.2016. Writ Petition (C)  No.10  of  2016  was  dismissed  on
7.1.2016 by a Single Bench  (other  than  the  one,  which  had  passed  the
interim order dated 17.12.2016, as also, other than the  one  to  which  the
acting Chief Justice had assigned Writ Petition (C) No.  7745  of  2015  for
hearing –  after  the  passing  of  the  interim  order  dated  17.12.2016).
Dissatisfied with the  above  determination,  the  appellant  filed  Special
Leave Petition (C)  No.189  of  2016,  before  this  Court.    It  would  be
pertinent to mention, that the above special leave  petition  was  withdrawn
by the petitioner on 13.1.2016.
The legal challenge, on behalf of the appellants:
32.   The High Court disposed of Writ Petition  (C)  Nos.7745  and  7998  of
2015 by a common order  dated  13.1.2016.   The  instant  order  is  subject
matter of challenge, through Special Leave  Petition  (C)  Nos.1259-1260  of
2016.
33.   Despite the challenges to the various orders passed by the High  Court
through different petitions, it was contended on behalf of  the  appellants,
that the determination of Special Leave Petitions (C) Nos.1259-1260 of  2016
would completely and effectively, result in  the  adjudication  of  all  the
issues canvassed at the hands of the appellants, in the connected matters.
34.   It was submitted on behalf of the appellants, that  for  an  effective
adjudication of the present controversy, it is necessary to  understand  the
duties and responsibilities of the Governor, as envisaged in the  scheme  of
the Constitution.  It was highlighted, that the position  of  the  Governor,
should not be confused with the impression created by  Article  168  –  that
the State Legislature includes the Governor.  It  was  submitted,  that  the
Governor cannot be considered even as an officer of the House.  Despite  the
above two express assertions,  it was submitted, that it cannot be  disputed
that the Governor of a State is a part of the State Legislature – just  like
the President, is a part of the  Parliament.   It  was  asserted,  that  the
Governor functions and operates as a bridge between the  executive  and  the
legislature.  Through an address by the  Governor  under  Article  175,  the
executive informs the Assembly, about the policies of the  Government.   The
power vested with the Governor, to give his assent to a Bill passed  by  the
Assembly, or to require the matter to be reconsidered by returning the  Bill
to the legislature, it  was  pointed  out,  were  powers  which  a  Governor
exercised  beyond  the  precincts  of  the  Assembly.   This  function/power
resting with the Governor, according to learned counsel, was clearly  beyond
the scope of legislative business, conducted within the  Assembly.   It  was
pointed out, that when a Governor summons the House, he does not  do  so  at
his own will.  He summons the House, on the aid  and  advice  of  the  Chief
Minister and his Council of  Ministers,  after  due  consultation  with  the
Speaker.  The only responsibility entrusted to the  Governor,  according  to
learned counsel, is provided for in Article 174,  inasmuch  as,  it  is  the
obligation of the Governor to ensure, that the  interval  between  the  last
sitting of the previous session, and the first  sitting  of  the  succeeding
session, is not more than six months.
35.    For  substantiating  the  propositions  canvassed  in  the  foregoing
paragraph, reliance  was  first  placed  on  Article  158,  which  expressly
provides, that the “…Governor shall not be  a  member  of  either  House  of
Parliament or of a House of the Legislature of any State  specified  in  the
First Schedule…”.  It  was  pointed  out,  that  as  a  matter  of  abundant
caution, Article 158 also provides, that in case an incumbent member of  the
Assembly (or that of the Parliament) is appointed as Governor of a State  “…
he shall be deemed to have vacated his seat in that House  on  the  date  on
which he enters his office as Governor”.  Additionally, reliance was  placed
on Article 163 to demonstrate, that the Governor is bound  by  the  aid  and
advice of  the  Chief  Minister  and  his  Council  of  Ministers.   It  was
acknowledged, that the Governor is also authorized to  act  independently  –
on his own, but only in respect of such functions, wherein he  is  expressly
authorized to do so, by or under the  Constitution.   It  was  acknowledged,
that in such matters which the Governor  considers  as  falling  within  his
independent judgment, “… the decision of  the  Governor  in  his  discretion
shall be final…”.  And that, the exercise  of  such  discretion,  cannot  be
called in question. It was  however  pointed  out,  that  such  exercise  of
independent judgment, can only be questioned by way of judicial review.
36.   In order to demonstrate the effectiveness of the Governor as a  bridge
between the executive and the legislature, reliance was  placed  by  learned
counsel on Article 167, which provides that it would  be  the  duty  of  the
Chief Minister, to communicate all decisions of  the  Council  of  Ministers
relating to administration of affairs of the State to the Governor, as  well
as,  proposals  with  reference  to  matters   on   which   legislation   is
contemplated.  It was therefore submitted,  that  the  intent  expressed  in
Article 168 should not be determined from a peripheral reading thereof,  but
from the scheme envisioned by the surrounding  provisions.   It  was  urged,
that even though Article 168 provides, that every State Legislature  “shall”
consist of the Governor, the fact of the matter is, that  the  Governor  has
no role in any legislative activity of the House.
37.   It was acknowledged, that the Governor  was  obliged  to  address  the
Assembly, in consonance with Article 175(1).  It  was  however  urged,  that
the Governor’s address to the House,  was  obligated  to  be  in  consonance
with, the  aid  and  advice  of  the  Chief  Minister  and  his  Council  of
Ministers.  It was pointed out, that the same  position  prevailed,  in  the
matter of  sending  messages  to  the  House  under  Article  175(2),  which
according to learned counsel, was subject to similar aid and advice.
38.   Inviting the Court’s attention to Article 178 it was  submitted,  that
the instant Article is a part  of  Chapter  III   -  under  Part  VI  (which
includes Articles 178 to 189), of the Constitution.   It  was  pointed  out,
that Chapter III bears the heading – “Officers of  the  State  Legislature”.
It was pointed out, that the Speaker and the Deputy  Speaker  are  the  only
two officers of the State Legislative Assembly.  And likewise, the  Chairman
and the Deputy Chairman, are the only  officers  of  the  State  Legislative
Council.  Besides the above officers,  the  staff  of  a  State  Legislative
Assembly, comprises of the personnel appointed, for carrying on  ministerial
responsibilities of the secretariat of the Legislature.  It  was  submitted,
that no other functionary could be considered as an  officer  of  the  State
Legislature.  The pointed  contention  of  learned  counsel  was,  that  the
Governor could not be considered, as  an  officer  of  a  State  Legislative
Assembly.
39.   In the present sequence of submissions, learned counsel, last of  all,
referred to Article 208,  and  urged,  that  the  same  allows  every  State
Legislative Assembly  to  frame  rules  for  regulating  the  procedure  for
conducting business of the House.  Having drawn  the  Court’s  attention  to
sub-article (3) of Article 208, it was  submitted,  that  the  power  vested
with the Governor to make rules thereunder, was  limited  to  communications
between the two  Houses  (the  State  Legislative  Assembly  and  the  State
Legislative Council).  It was accordingly contended,  that  the  framing  of
the above rules of procedure, should not be confused  with,  the  rules  for
carrying on the business of the House itself.  Having invited our  attention
to Article 163, it was asserted, that the power  vested  with  the  Governor
under Article 208 by necessary implication, had to be exercised on  the  aid
and advice of the Chief Minister and his Council of Ministers.
40.   Having premised his  submissions  on  the  aforementioned  provisions,
reference was made by learned counsel to Paragraph 6 of the Tenth  Schedule.
 Paragraph 6(1), according to  learned  counsel,  leaves  no  room  for  any
doubt, that on the subject of disqualification of  an  MLA,  the  functional
authority is vested only with the Speaker.  It was further  submitted,  that
reference to Article 212 (cited in Paragraph 6(2), of the  Tenth  Schedule),
was for the sole purpose of  granting  judicial  immunity,  to  the  actions
taken on a disqualification motion under Paragraph 6.  Most importantly,  it
was pointed out, that the Governor has no role whatsoever, on  the  question
of removal of MLAs.  And as such, according to learned counsel, it  was  not
open to the Governor to be concerned with, what might or might  not  emerge,
from proceedings conducted by the Speaker under the Tenth Schedule.
41.   It is relevant to  mention,  that  learned  counsel  representing  the
appellants, also made a reference to Article  361,  which  postulates  inter
alia, that the Governor of a State is not “… answerable  to  any  court  for
the exercise and performance of powers and duties of his office or  for  any
act done or purporting to be done by him in the exercise and performance  of
those powers and duties…”. Despite the aforesaid protection afforded to  the
Governor, it was submitted, that in the present controversy, the Governor  –
Jyoti Prasad Rajkhowa had moved an application for  being  permitted  to  be
arrayed as a party respondent.  This action of the  Governor,  according  to
learned counsel, was sufficient to infer, that the actions of  the  Governor
were partisan.  It was submitted, that the facts of the  case  reveal,  that
the actions  of  the  Governor,  were  supportive  of  the  BJP  for  purely
political considerations, and that, they were pointedly prejudicial  to  the
interest of the INC.  It was asserted, that an analysis of  actions  of  the
Governor would reveal,  that  the  Governor  was  making  concerted  efforts
towards dislodging the INC Government,  and/or  weakening  it  by  extending
support to the faction of the INC MLAs seeking  the  removal  of  the  Chief
Minister – Nabam Tuki.
42.   In order to support his contentions, learned counsel  placed  reliance
on debates of the Constituent Assembly.  With reference to Article  163,  it
was submitted, that the Governor was mandated to discharge his functions  in
consonance with the aid and advice of the “Council  of  Ministers  with  the
Chief Minister at the head”.  The only exception to the above  position  was
in situations, where an express provision of the Constitution, required  the
Governor to exercise his  functions  in  his  own  discretion/judgment.   It
would be relevant to mention, that draft Article 143 eventually came  to  be
renumbered as Article 163 in  the  Constitution.   The  debate  highlighted,
with reference to the concerned provision, is extracted hereunder:
“Shri H.V. Kamath: (C.P. & Berar: General): Mr. President, Sir, I move:
"That in clause (1) of article 143, the words 'except in so far as he is  by
or under this Constitution required to exercise  his  functions  or  any  of
them in his discretion' be deleted."
If this amendment were accepted by the House, this  clause  of  article  143
would read thus:-
"There shall be a Council of Ministers with the Chief Minister at  the  head
to aid and advise the Governor in the exercise of his functions."
Sir, it appears from a reading of this clause that the Government  of  India
Act  of  1935  has  been  copied  more  or  less  blindly   without   mature
consideration. There is no strong or valid reason for  giving  the  Governor
more  authority  either  in  his   discretion   or   otherwise vis-a-vis his
ministers, than  has  been  given  to  the  President  in  relation  to  his
ministers. If we turn to article 61(1), we find it reads as follows:-
"There shall be a Council of Ministers with the Chief Minister at  the  head
to aid and advise the Governor in the exercise of his functions."
When you, Sir, raised a very important issue, the  other  day,  Dr. Ambedkar
clarified this clause by saying that the President is bound  to  accept  the
advice of his ministers in the exercise of all of his  functions.  But  here
article 143 vests certain discretionary powers in the Governor,  and  to  me
it seems that even as it was, it  was  bad  enough,  but  now  after  having
amended  article  131  regarding  election  of  the  Governor  and  accepted
nominated Governors, it would be wrong in  principle  and  contrary  to  the
tenets and principles of constitutional Government, which you are  going  to
build up in this country. It would be wrong  I  say, to  invest  a  Governor
with these additional powers, namely, discretionary powers. I feel  that  no
departure  from  the  principles   of   constitutional   Government   should
be favoured except for reasons of emergency and these  discretionary  powers
must be done away with. I hope this amendment of mine  will  commend  itself
to the House. I move, Sir.
xxx         xxx              xxx
Shri T.T. Krishnamachari: Mr. President, I am afraid I will have  to  oppose
the amendment moved by my honourable Friend Mr. Kamath, only for the  reason
that he has not  understood  the  scope  of  the  article  clearly  and  his
amendment arises out of a misapprehension.
Sir, it is no doubt true, that  certain  words  from  this  article  may  be
removed, namely, those which refer to the exercise by the  Governor  of  his
functions where he has to use his  discretion  irrespective  of  the  advice
tendered by his Ministers. Actually, I think  this  is  more  by  way  of  a
safeguard, because there are specific provisions in this Draft  Constitution
which occur subsequently where the Governor  is  empowered  to  act  in  his
discretion irrespective of the advice tendered by his Council of  Ministers.
There are two ways of formulating the idea underlying it. One is to  make  a
mention of this exception in this article 143 and enumerating  the  specific
power of the Governor where he can exercise his discretion in  the  articles
that occur subsequently, or to leave out any mention of this power here  and
only state it in  the  appropriate  article.  The  former  method  has  been
followed. Here the general proposition  is  stated  that  the  Governor  has
normally to act on the advice of his Ministers  except  in  so  far  as  the
exercise of his discretions covered by those articles  in  the  Constitution
in which he is specifically empowered to act in his discretion. So  long  as
there are articles occurring subsequently in the Constitution  where  he  is
asked to act  in  his  discretion,  which  completely  cover  all  cases  of
departure from the normal practice to which I see  my honourable Friend  Mr.
Kamath has no objection, I may refer to article 188, I see no  harm  in  the
provision in this article being as it is. If  it  happens  that  this  House
decides that in all the subsequent articles, the discretionary power  should
not be there, as it may conceivably do, this particular  provision  will  be
of no use and will fall into desuetude. The point that  my honourable Friend
is trying to make, while he concedes that the  discretionary  power  of  the
Governor can be given under article 188, seems to be pointless. If it is  to
be given in article 188, there is no harm in the  mention  of  it  remaining
here. No harm can arise by specific mention of  this  exception  of  article
143. Therefore, the serious objection that Mr. Kamath finds for  mention  of
this exception is pointless. I therefore think that the article  had  better
be passed without any amendment. If it is necessary for the House either  to
limit the discretionary power of the Governor or  completely  do  away  with
it, it could be done in the articles that occur subsequently where  specific
mention is made without which this power that is mentioned  here  cannot  at
all be exercised. That is the point that I would like to draw the  attention
of the House to and I think the article had better be passed as it is.
Dr.  P.S. Deshmukh: (C.P.  &  Berar:  General):  Mr.   President,   Mr.   T.
T. Krishnamachari has clarified the position with regard to  this  exception
which has been added to clause (1) of article 143. If the  Governor  is,  in
fact, going to have a discretionary power, then it is  necessary  that  this
clause which Mr. Kamath seeks to omit must remain.
Sir, Besides this, I do not know if the Drafting Committee has  deliberately
omitted or they are going to provide it at a later stage, and I  would  like
to ask Dr. Ambedkar whether it is not necessary to provide for the  Governor
to preside at the meetings of the Council of Ministers. I do  not  find  any
provision  here  to  this  effect.  Since  this  article  143  is   a   mere
reproduction of section 50 of the Government of India Act, 1935, where  this
provision does exist that the Governor in his discretion may preside at  the
meetings of the Council of Ministers, I think this power is very  necessary.
Otherwise,  the  Ministers  may  exclude  the  Governor  from  any  meetings
whatever and this power unless  specifically  provided  for,  would  not  be
available to the Governor. I  would  like  to  draw  the  attention  of  the
members of the Drafting Committee to this and  to  see  if  it  is  possible
either to accept an amendment to article  143  by  leaving  it  over  or  by
making this provision in  some  other  part.  I  think  this  power  of  the
Governor to preside over the meetings of the Cabinet  is  an  essential  one
and ought to be provided for.
xxx              xxx              xxx
Pandit Hirday Nath Kunzru: (United  Provinces:  General):  Mr.  President  I
should like to ask Dr. Ambedkar whether it is necessary to retain after  the
words "that the Governor will be aided and advised by  his  Ministers",  the
words "except in regard to certain matters in respect  of  which  he  is  to
exercise his discretion". Supposing these words, which  are  reminiscent  of
the old Government of India Act and the old order, are  omitted,  what  harm
will be done? The functions of the Ministers legally will  be  only  to  aid
and advice the Governor. The article in which these  words  occur  does  not
lay down that the Governor shall be guided by the advice  of  his  Ministers
but it is expected that  in  accordance  with  the  Constitutional  practice
prevailing  in  all  countries  where  responsible  Government  exists   the
Governor will in all matters accept the advice of his Ministers.  This  does
not however mean that where the Statute clearly lays  down  that  action  in
regard to specified matters may be taken by him on his  own  authority  this
article 143 will stand in his way.
            xxx              xxx             xxx
I should like to say one word more before I close. If article 143 is  passed
in its present form, it may give rise to misapprehensions of the  kind  that
my honourable  Friend  Dr. Deshmukh seemed  to  be labouring under  when  he
asked that a provision should be inserted entitling the Governor to  preside
over the meetings of the Council of Ministers. The Draft  Constitution  does
not provide for this and I think wisely does not provide for this. It  would
be contrary to the traditions of responsible government as  they  have  been
established in Great Britain and the British Dominions,  that  the  Governor
or the Governor-General should, as a  matter  of  right,  preside  over  the
meetings of his cabinet. All that the Draft Constitution does is to  lay  on
the Chief Minister the duty of informing the Governor of the decisions  come
to by the Council of Ministers in regard to administrative matters  and  the
legislative programme of the government. In spite of this, we see  that  the
article 143, as it is worded, has created a misunderstanding in the mind  of
a member like Dr. Deshmukh who takes pains to follow every  article  of  the
Constitution with care. This is an additional reason why  the  discretionary
power of the Governor should not be referred to in article 143.  The  speech
of my Friend  Mr.  Krishnamachari does  not  hold  out  the  hope  that  the
suggestion that I have made has any chance of being accepted.  Nevertheless,
I feel it my duty to say that the course proposed  by  Mr. Kamath is  better
than what the Drafting Sub-Committee seem to approve.
xxx              xxx              xxx
Shri Alladi Krishnaswami Ayyar: (Madras: General): Sir, there is  really  no
difference between those who oppose and those who approve the amendment.  In
the first place, the general principle is laid down in article  143  namely,
the principle of  ministerial  responsibility,  that  the  Governor  in  the
various spheres of executive activity  should  act  on  the  advice  of  his
ministers. Then the article goes on to provide "except in so far  as  he  is
by or under this Constitution required to exercise his functions or  any  of
them in his discretion. So long as there are  article  in  the  Constitution
which  enable  the  Governor  to  act  in  his  discretion  and  in  certain
circumstances, it may be, to over-ride  the  cabinet  or  to  refer  to  the
President, this article as it is framed is perfectly in order. If  later  on
the House comes to the conclusion  that  those  articles  which  enable  the
Governor to act in his discretion in specific cases should  be  deleted,  it
will be open to revise  this  article.  But  so  long  as  there  are  later
articles which permit the Governor to act  in  his  discretion  and  not  on
ministerial responsibility, the article as drafted is perfectly in order.
Shri H.V. Pataskar: (Bombay: General): Sir, article 143 is perfectly  clear.
With regard to  the  amendment  of  my honourable Friend  Mr. Kamath various
points were raised, whether the Governor is  to  be  merely  a  figure-head,
whether he is to be a constitutional head only or  whether  he  is  to  have
discretionary  powers.  To  my  mind  the  question  should  be  looked   at
from and entirely different point of view. Article  143  merely  relates  to
the functions of the ministers. It does not primarily relate to  the  powers
and functions of a Governor. It only says:
"There shall be a Council of Ministers with the Chief Minister at  the  head
to aid and advise the Governor in the exercise of his functions."
Granting that we stop there, is it likely that any complications will  arise
or that it will interfere with the discretionary powers which  are  proposed
to be given to the Governor? In my view article 188  is  probably  necessary
and I do not mean to suggest for a moment that the Governor's powers to  act
in an emergency which powers are given under  article  188,  should  not  be
there. My point is this, whether if this Provision, viz., "except in so  far
as he is by or under this Constitution required to  exercise  his  functions
or any of them in his discretion", is not there, is it going to  affect  the
powers that are going to be given to him to  act  in  his  discretion  under
article  188?  I  have  carefully  listened  to   my honourable Friend   and
respected constitutional lawyer. Mr. Alladi Krishnaswami Ayyer,  but  I  was
not able to follow why a provision like this  is  necessary.  He  said  that
instead later on, while considering  article  188,  we  might  have  to  say
"Notwithstanding anything contained in article 143." In the first  place  to
my mind it is not necessary. In  the  next  place,  even  granting  that  it
becomes necessary at a later stage to  make  provision  in  article  188  by
saying "notwithstanding anything contained in  article  143",  it  looks  so
obnoxious to keep these words here and they are  likely  to  enable  certain
people to create a sort of unnecessary  and  unwarranted  prejudice  against
certain people. Article 143  primarily  relates  to  the  functions  of  the
ministers. Why is it necessary at this stage to remind the ministers of  the
powers of the Governor and his functions, by telling them  that  they  shall
not give any aid or advice in so far as he, the Governor is required to  act
in his discretion? This is an  article  which  is  intended  to  define  the
powers and functions of the Chief Minister. At that point to  suggest  this,
looks like lacking  in  courtesy  and  politeness.  Therefore  I  think  the
question should be considered in that way. The question is  not  whether  we
are going to  give  discretionary  powers  to  the  Governors  or  not.  The
question is not whether he is to  be  merely  a  figure-head  or  otherwise.
These are questions to be debated at their proper time and  place.  When  we
are considering article  143  which  defines  the  functions  of  the  Chief
Minister it looks so awkward and unnecessary to  say  in  the  same  article
"except in so far as he  is  by  or  under  this  Constitution  required  to
exercise his functions or any of them in his discretion." Though I  entirely
agree that article 188 is  absolutely  necessary  I  suggest  that  in  this
article 143 these words are entirely unnecessary and should  not  be  there.
Looked at from a practical point of view this provision is misplaced and  it
is not courteous, nor  polite,  nor  justified  nor  relevant.  I  therefore
suggest that nothing would be lost by deleting these words. I  do  not  know
whether my suggestion would be acceptable but I  think  it  is  worth  being
considered from a higher point of view.
xxx              xxx              xxx
The Honourable Dr. B.R. Ambedkar: Mr. President, Sir, I did not  think  that
it would have been necessary for me to speak and take part  in  this  debate
after what my Friend, Mr. T. T. Krishnamachari, had said on  this  amendment
of Mr. Kamath, but as  my  Friend, Pandit Kunzru,  pointedly  asked  me  the
question and demanded a reply, I thought that out of courtesy I  should  say
a few words. Sir, the main and the crucial question is, should the  Governor
have discretionary powers? It is that question which is  the  main  and  the
principal question. After we come to some decision  on  this  question,  the
other question whether the words used in the last  part  of  clause  (1)  of
article 143 should be retained in that  article  or  should  be  transferred
somewhere else could be usefully considered.  The  first  thing,  therefore,
that I propose to do so is to devote myself of this  question  which,  as  I
said, is the crucial question. It has been said in the course of the  debate
that the retention of discretionary power in the  Governor  is  contrary  to
responsible government in the provinces. It has  also  been  said  that  the
retention of discretionary power in the Governor smells  of  the  Government
of India Act, 1935, which in the main was undemocratic.  Now,  speaking  for
myself, I have no doubt in my mind that the retention in or the vesting  the
Governor with certain discretionary powers is in no sense contrary to or  in
no sense a negation of responsible government. I do not wish to rake up  the
point because on this point I can very well satisfy the House  by  reference
to the provisions in the Constitution of  Canada  and  the  Constitution  of
Australia. I do not think anybody in  this  House  would  dispute  that  the
Canadian  system  of  government  is  not  a  fully  responsible  system  of
government, nor will anybody in this House  challenge  that  the  Australian
Government is not a responsible form of  government.  Having  said  that,  I
would like to read section 55 of the Canadian Constitution.
"Section 55.--Where a Bill passed by the Houses of Parliament  is  presented
to the Governor-General for the Queen's assent, he shall, according  to  his
discretion, and subject to provisions of this Act, either assent thereto  in
the Queen's name, or withhold the Queen's assent or  reserve  the  Bill  for
the signification of the Queen's pleasure."
xxx              xxx              xxx
The Honourable Dr. B. R. Ambedkar: I think he has misread the article. I  am
sorry I do not have the Draft Constitution with me. "Except in so far as  he
is by or under this Constitution," those are the words. If  the  words  were
"except whenever he thinks that he should exercise this power of  discretion
against the wishes or against the advice of the  ministers",  then  I  think
the criticism made by  my  honourable Friend Pandit Kunzru would  have  been
valid. The clause is a very limited clause; it says: "except in  so  far  as
he is by or under this Constitution". Therefore, article 143  will  have  to
be read in conjunction with such other articles which  specifically  reserve
the power to the Governor. It is not a general clause  giving  the  Governor
power to disregard the advice of his ministers in any  matter  in  which  he
finds he ought to disregard.  There,  I  think,  lies  the  fallacy  of  the
argument of my  honourable  Friend,  Pandit Kunzru.
Therefore, as I said, having stated that there is nothing incompatible  with
the retention of the discretionary power in the Governor in specified  cases
with the system of responsible Government, the  only  question  that  arises
is, how should we provide for the mention of this  discretionary  power?  It
seems to me that there are three ways by which this  could  be  done.    One
way is  to  omit  the  words  from  article  143  as  my honourable Friend,
Pandit Kunzru, and others desire and to add to such articles as 175, or  188
or such other provisions which the House may  hereafter  introduce,  vesting
the Governor with the discretionary power,  saying  notwithstanding  article
143, the Governor shall have this or that power. The other way would  be  to
say in article  143,  "that  except  as  provided  in  articles  so  and  so
specifically mentioned-articles 175, 188, 200 or  whatever  they  are".  But
the point I am trying to submit to  the  House  is  that  the  House  cannot
escape  from  mentioning  in  some  manner  that  the  Governor  shall  have
discretion.
Now the matter which seems to find some  kind  of favour with  my honourable
Friend, Pandit Kunzru and those who have spoken in the same way is that  the
words should be omitted from here and should be transferred  somewhere  else
or that the specific articles should be mentioned in article 143.  It  seems
to me that this is a mere method  of  drafting.  There  is  no  question  of
substance and no question of principle. I personally myself would  be  quite
willing to amend the last portion of clause (1) of article 143 if I knew  at
this stage what are the provisions that this Constituent  Assembly  proposes
to make with regard to  the  vesting  of  the  Governor  with  discretionary
power. My difficulty is that we have not as yet come either to  article  175
or 188 nor have we exhausted  all  the  possibilities  of  other  provisions
being made, vesting the Governor with discretionary power. If I  knew  that,
I would very readily agree to amend article 143 and to mention the  specific
article, but that cannot be done now. Therefore, my submission  is  that  no
wrong could be done if the words as they stand  in  article  143  remain  as
they are. They are certainly not inconsistent.
Shri H.V. Kamath: Is there no  material  difference  between  article  61(1)
relating to the President vis-a-vis his ministers and this article?
The Honourable Dr. B.R. Ambedkar: Of course there is because we do not  want
to vest the President with any discretionary power. Because  the  provincial
Governments  are  required  to  work  in  subordination   to   the   Central
Government,  and  therefore,  in  order  to  see  that  they   do   act   in
subordination to the Central Government the Governor  will  reserve  certain
things in order to give the President the opportunity to see that the  rules
under which the provincial Governments are supposed to act according to  the
Constitution or in subordination to the Central Government are observed.
Shri H.V. Kamath: Will it not be better to specify certain articles  in  the
Constitution with regard to  discretionary  powers,  instead  of  conferring
general discretionary powers like this?
The Honourable Dr. B.R. Ambedkar: I said so, that I would  very  readily  do
it. I am prepared to introduce specific articles, if  I  knew what  are  the
articles which the  House  is  going  to  incorporate  in  the  Constitution
regarding vesting of the discretionary powers in the Governor.
Shri H.V. Kamath: Why not hold it over?
The Honourable Dr. B.R. Ambedkar: We can revise.  This  House  is  perfectly
competent to revise article 143. If after going through  the  whole  of  it,
the House feels that the  better  way  would  be  to  mention  the  articles
specifically, it can do so. It is purely a logomachy.”

It is not necessary for us to summarise any inferences or conclusions,  from
the above debate,  as  the  same  are  apparent  from  the  suggestions  and
responses, highlighted above.
43.   Reliance was then placed on the decision rendered  by  a  Constitution
Bench of this Court in Samsher Singh v. State of  Punjab[1].   The  question
that arose for consideration in the above case was, whether the Governor  as
a constitutional head of the State, could exercise powers  or  functions  of
appointment and removal of members  of  the  subordinate  judicial  service,
personally?  The contention of the State Government was, that  the  Governor
was obliged to exercise powers of appointment and removal, conferred on  him
by or under the Constitution, like the other executive power  of  the  State
Government, only on the aid and advice of the Council of Ministers, and  not
personally.  As against the above stance, the appellants before  this  Court
placed reliance on the  decision  in  Sardari  Lal  v.  Union  of  India[2],
wherein this Court had held, that the President  or  the  Governor,  as  the
case may be, on being satisfied would make an order  under  Article  311(2),
and more particularly, under proviso (c)  thereof.   It  was  further  held,
that the satisfaction of  the  President  or  the  Governor,  in  the  above
matter, was his “personal satisfaction”.  It was therefore,  the  contention
of the appellants before this Court, in the above case, that in exercise  of
powers   vested   with    the    Governor    under    Article    234,    the
appointment/termination  of  subordinate  judges  was  to  be  made  by  the
Governor in exercise  of  his  “personal  discretion”.   It  would  also  be
relevant to mention, that the Samsher Singh case1 was decided  by  a  seven-
Judge Bench, which examined the correctness of the decision rendered in  the
Sardari Lal case2.  While debating the issue,  this  Court  in  the  Samsher
Singh case1, examined the distinction between Articles 74 and 163, and  held
as under:
“16. It is noticeable that though in  Article 74 it  is  stated  that  there
shall be a Council of Ministers with the Prime Minister at the head  to  aid
and advise the President in the exercise  of  his  functions,  there  is  no
provision in Article 74 comparable to Article 163 that the  aid  and  advice
is except in so far as he is required to exercise his functions  or  any  of
them in his discretion.
17. It is necessary to find out as to why the words ‘in his discretion’  are
used in relation to some powers of the Governor and not in the case  of  the
President.
18.  Article 143 in  the  Draft  Constitution  became   Article 163 in   the
Constitution.  The  Draft  Constitution  in  Article 144(6) said  that   the
functions  of  the  Governor  under  that  article  with  respect   to   the
appointment and dismissal of Ministers shall be  exercised  by  him  in  his
discretion.    Draft     Article 144(6) was     totally     omitted     when
Article 144 became   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) was  totally  omitted  when   it   became
Article 174 of our Constitution. Draft Article  175 (proviso) said that  the
Governor "may in his discretion return the  Bill  together  with  a  message
requesting that the House will reconsider the Bill". Those words  that  “the
Governor may in his discretion" were omitted  when  it  became  Article 200.
The Governor under Article 200 may return the Bill together with  a  message
requesting that the House will reconsider the Bill. Draft  Article 188 dealt
with provisions in case of grave emergencies. Clauses (1) and (4)  in  Draft
Article 188 used the words “in his discretion” in relation  to  exercise  of
power  by  the  Governor.  Draft  Article 188 was  totally  omitted.   Draft
Article 285(1) and (2) dealing with composition and staff of Public  Service
Commission used the expression "in his discretion" in relation  to  exercise
of power by the Governor in  regard  to  appointment  of  the  Chairman  and
Members and making of regulation. The words "in his discretion" in  relation
to  exercise  of  power  by  the  Governor  were  omitted  when  it   became
Article 316.  In  Paragraph  15(3)  of  the  Sixth  Schedule  dealing   with
annulment or suspension of Acts or suspension of  Acts  and  resolutions  of
District and Regional Councils  it  was  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  was  omitted  at  the
time of enactment of the Constitution.
19. It is, therefore, understood in the  background  of  these  illustrative
draft articles as to why Article 143 in the Draft Constitution which  became
Article 163 in our Constitution used the expression "in his  discretion"  in
regard to some powers of the Governor.
20. Articles where the expression  "acts  in  his  discretion"  is  used  in
relation to the powers and functions of the Governor are those  which  speak
of   special   responsibilities   of   the    Governor.    These    articles
are 371A(1)(b), 371A(1)(d), 371A(2)(b) and 371A(2)(f).   There    are    two
paragraphs in the Sixth Schedule, namely, 9(2) and  18(3)  where  the  words
"in his discretion" are used in relation to certain powers of the  Governor.
Paragraph 9(2) is in  relation  to  determination  of  amount  of  royalties
payable by licensees or lessees prospecting for, or extracting  minerals  to
the District Council. Paragraph 18(3) has  been  omitted  with  effect  from
January 21, 1972.
            xxx              xxx             xxx
30. In all cases in which  the  President  or  the  Governor  exercises  his
functions conferred on him by or under the Constitution  with  the  aid  and
advice of  his  Council  of  Ministers  he  does  so  by  making  rules  for
convenient transaction of the business of the Government  of  India  or  the
Government of the State respectively or by allocation  among  his  Ministers
of       the       said       business,       in       accordance       with
Articles 77(3) and 166(3) respectively. Wherever the  Constitution  requires
the satisfaction of the President or the Governor for the  exercise  of  any
power or function by the President or the Governor, as the case may  be,  as
for example in Articles 123, 213, 311(2)   proviso  (c),   317,   352  (1),
356 and 360 the  satisfaction  required  by  the  Constitution  is  not  the
personal satisfaction of the  President  or  of  the  Governor  but  is  the
satisfaction of the President or  of  the  Governor  in  the  constitutional
sense under the Cabinet system of Government. The reasons are these.  It  is
the satisfaction of the Council of Ministers on whose  aid  and  advice  the
President or the Governor generally exercises all his powers and  functions.
Neither Article 77(3) nor  Article 166(3) provides  for  any  delegation  of
power.  Both  Articles 77(3) and 166(3) provide  that  the  President  under
Article 77(3) and the Governor under  Article 166(3) shall  make  rules  for
the more convenient transaction of the business of the  Government  and  the
allocation of business among the Ministers of the said business.  The  Rules
of Business and the allocation among the Ministers of the said business  all
indicate that the decision of any Minister or officer  under  the  Rules  of
Business made under these two articles viz., Article 77(3) in  the  case  of
the President and Article 166(3) in the case of the Governor  of  the  State
is the decision of the President or the Governor respectively.”

44.   Based on the determination rendered  by  this  Court  in  the  Samsher
Singh case1,  it  was  submitted,  that  all  functions  discharged  by  the
Governor, would have to be based on the aid and advice  of  the  Council  of
Ministers (with the Chief Minister as the head), and in  the  instant  case,
it is apparent, that the Governor had acted on his own,  while  issuing  the
order dated  9.12.2015,  for  summoning  the  House  for  16.12.2015,  under
Article 174.  It was pointed out, that the Governor in the above  order  had
himself recorded, that “… I may not be bound by the advice  of  the  Council
of Ministers …” and had also expressed therein, “… it  is  a  constitutional
obligation on my part to ensure that  the  resolution  for  removal  of  the
Speaker is expeditiously placed before the  Legislative  Assembly  …”.   And
likewise, the message of the Governor dated 9.12.2015,  directing  that  the
composition of the House should not be changed, and the manner in which  the
business of the House was to be conducted when it assembled  on  16.12.2015,
was issued without any aid and advice.
45.   Based on the conclusions recorded in the Samsher Singh case1,  it  was
contended, that the disqualification process contemplated  under  the  Tenth
Schedule, is of no concern, of the Governor.  While,  it  was  acknowledged,
that the Tenth Schedule was introduced into the  Constitution,  to  maintain
and sustain the process of democratic governance, and  therefore,  the  same
could not be  put  on  a  backburner  or  suspended.   Learned  counsel  was
emphatic  in  his  submission,  that  the  Governor  has  no  role  in   the
disqualification process contemplated under the  Tenth  Schedule.   And  the
Speaker alone, has the authority to effectuate in his exclusive  discretion,
the schedule which needed to be adopted, in the process of  disqualification
of MLAs.  As such, it was asserted, that  the  fluidity  of  the  democratic
process, could not be  treated  as  some  kind  of  justification,  for  the
Governor’s order and message dated 9.12.2015.
46.   Learned senior  counsel  also  contended,  that  all  actions  of  the
Governor, ought to be in conformity with the aid and advice tendered to  him
by the Council of Ministers and the Chief  Minister,  except  when  mandated
otherwise.  It was submitted, that where such an express discretion  is  not
provided for, by or  under  a  constitutional  provision,  the  Governor  is
precluded from exercising his own  discretion.  Illustratively,  he  invited
our attention to Articles 371-A(1)(b),  371-A(1)(d),  371-A(2)(b)  and  371-
A(2)(f), wherein the Articles themselves postulate that the  Governor  would
discharge his functions in his individual discretion/judgment.  Reliance  in
this behalf, was placed on PU Myllai Hlychho v. State of Mizoram[3]. It  was
submitted, that similar discretion has also been vested  with  the  Governor
under  the  provisions  of  the  Fifth  and  the  Sixth  Schedules  to   the
Constitution.  In this behalf, reference was made to State of  Meghalaya  v.
KA Brhyien Kurkalang[4], Bhuri Nath v.  Sate  of  Jammu  &  Kashmir[5],  and
Samatha v. State of A.P.[6].  Illustratively, reference  was  also  made  to
Articles 167, 200 and 356 wherein the Governor is presumed to  exercise  his
powers at his  own  discretion,  because  the  above  provisions  cannot  be
construed  otherwise.    It  was  accordingly  asserted,   that   individual
discretion could be exercised by the Governor, only when  the  Governor  was
so expressly authorized by  a  constitutional  provision,  to  exercise  his
discretion at his own.  And not otherwise.
47.   It was pointed out, that the functions of the office of  the  Governor
vis-a-vis the State Legislature, are comparable to those  of  the  President
with reference to the Parliament and the Central Government.   In  order  to
highlight the contours of the duties and responsibilities of  the  Governor,
and the extent to which he  can  participate  in  the  legislative  process,
reliance was placed on a treatise by M.N Kaul and S.L. Shakdher –  “Practice
and Procedure of Parliament”, (5th Edition),  published  by  the  Lok  Sabha
Secretariat.  In order to highlight the extent of the Governor’s  power  and
authority, on the subject of summoning the Assembly, reference was  made  to
the following position narrated in Chapter IX, which  bears  the  heading  –
“Summoning, Prorogation of the Houses of Parliament and the  Dissolution  of
the Lok Sabha”:
“Summoning of Lok Sabha-
The power to summon Lok Sabha is vested  in  the  President.   He  exercises
this power on the recommendation of the Prime Minister or the  Cabinet.   He
may make  informal  suggestions  to  the  Prime  Minister  as  to  the  more
convenient date and time of summoning the House, but the ultimate advice  in
this matter rests with the Prime Minister.
In West Bengal consequent on the resignation of eighteen members,  including
one Minister, from the ruling United Front on 6 November, 1967, prima  facie
doubts arose about majority support to the  Government  in  the  Legislative
Assembly.  The  Governor  desired  that  the  Assembly  be  summoned  on  23
November, so that a confidence vote might be taken, but the  Chief  Minister
said that he would call  the  Assembly  into  session  on  18  December,  as
scheduled.  Thereupon, the Governor dismissed the Ministry on 21 November.
The  crisis  in  West  Bengal,  as  observed  by  Speaker  Reddy,  was   not
unavoidable,  for  the  Governor  need  not  have  precipitated  matters  by
insisting on the  Chief  Minister  to  convene  the  Assembly  earlier  than
scheduled, when the interval between the two dates was only of a few days.
In a Resolution adopted at the Conference  of  Presiding  Officers,  it  was
recommended that the Government  of  India  should,  in  the  light  of  the
following observations, take urgent and suitable  steps  in  regard  to  the
powers of Governors to summon or prorogue the Legislatures  and  to  dismiss
Ministries:
That a Governor shall summon or prorogue the Legislature on  the  advice  of
the Chief  Minister.   A  convention  shall  be  developed  that  the  Chief
Minister may fix the dates of summoning or prorogation after consulting  the
Presiding Officer concerned.  The Governor may suggest an  alternative  date
but it shall be left to the Chief Minister or the Cabinet  to  revise  their
decision or not.  Where, however,  there  is  undue  delay  in  summoning  a
Legislative  Assembly  and  the  majority  of  members  of  the  Legislative
Assembly desire to discuss a Motion of No-confidence in a Ministry and  make
a request to that effect  in  writing  to  the  Chief  Minister,  the  Chief
Minister shall advise the Governor to summon the Assembly within a  week  of
such request.
The  proposal  to  summon  Lok  Sabha  is  initiated  by  the  Minister   of
Parliamentary Affairs (and by the Leader of the  House  in  case  the  Prime
Minister is not the  Leader  of  the  House)  and  submitted  to  the  Prime
Minister, after an informal consultation with the Speaker in regard  to  the
date of commencement and the duration of the session.   The  Prime  Minister
may agree with the suggestion or refer it to the Cabinet.  The  proposal  as
finally agreed  to  by  the  Prime  Minister  or  the  Cabinet  is  formally
submitted to the Speaker.  If the Speaker also agrees  (in  the  case  of  a
rare disagreement, he may refer the matter back to the  Prime  Minister  for
reconsideration), he directs the Secretary-General to obtain  the  order  of
the President to summon Lok Sabha on the date  and  time  specified.   After
the President has signed the order,  the  Secretariat  notifies  it  in  the
Gazette Extraordinary and issues a press communiqué for wider  publicity  in
the Press as well as over the All India Radio and Doordarshan.”

And from Chapter XLI under the title –  “Parliament  and  the  States”,  our
attention was invited to the following narration:
“Prorogation of the Assembly
As regards prorogation, the Governor should normally act on  the  advice  of
his Council of Ministers.  Where  a  notice  of  no-confidence  against  his
Ministry is pending in the  Assembly,  the  Governor  should  first  satisfy
himself that the notice is not frivolous and is a genuine  exercise  of  the
parliamentary  right  of  the  Opposition  to  challenge  the   Government’s
majority.  If so satisfied, the Governor should ask the  Chief  Minister  to
face the Assembly and allow the motion to be debated  and  voted  upon.   To
prorogue the Assembly otherwise would amount to avoidance of  responsibility
of the Council of Ministers to the Assembly.
If an Assembly or Legislature has been prorogued in a State, the matter  may
be raised in the Lok Sabha and the Speaker may,  in  certain  circumstances,
allow a discussion thereon.
Dissolution of the Assembly
Normally a Governor should exercise the power of dissolution on  the  advice
of the Council of Ministers.   If  a  Chief  Minister  who  enjoys  majority
support advises dissolution, the Governor must accept the advice, but if  he
advises dissolution after losing his majority, the Governor need accept  his
advice only if the Ministry suffers a defeat on a question of  major  policy
and the Chief Minister wishes to appeal to the electorate for a  mandate  on
that policy.  In the case  of  a  Chief  Minister  heading  a  single  party
Government which has been returned by the electorate in  absolute  majority,
if the ruling party loses its majority because of defection by at least one-
third of its members and the Chief Minister recommends dissolution so as  to
enable him to make a fresh appeal to the electorate, the Governor may  grant
a dissolution.  The mere fact that some members of the party  have  defected
does not necessarily prove that the party has lost  the  confidence  of  the
electorate.  If there is a no-confidence motion against a Ministry  and  the
chief Minister, instead of facing the  Assembly,  advises  the  Governor  to
dissolve the Assembly, the Governor need not accept such advice, but  should
ask the Chief Minister to get  the  verdict  of  the  Assembly  on  the  no-
confidence motion.
In a case where the Chief Minister recommends dissolution  of  the  Assembly
when the Budget  has  not  been  voted  and  the  Ministry  claims  majority
support, the Ministry in such a situation should face the Assembly  and  get
the Budget passed before seeking dissolution for whatever  reason.   If,  on
the other hand, there is reason  to  believe  that  the  Chief  Minister  no
longer commands majority support, it is clearly  open  to  the  Governor  to
take steps to ascertain if it is possible to install another Ministry  which
is able to command majority support  and  get  the  Budget  passed.  Failing
both, the Governor has no  alternative  except  to  make  a  report  to  the
President under article 356 because Parliament  alone  could  then  sanction
appropriation for carrying on the administration of the State.
A Governor is not bound  to  accept  the  advice  of  a  Chief  Minister  to
dissolve the Assembly if the Chief Minister has lost the majority support.”

48.   In order to appreciate and effectively interpret Article 174,  it  was
submitted, that it is necessary to examine draft Article 153  drawn  by  the
Drafting Committee.  The same is reproduced below:
“153. Sessions of the State Legislature, propagation and dissolution. –  (1)
The House or Houses of the Legislature of the State  shall  be  summoned  to
meet twice at least in every  year,  and  six  months  shall  not  intervene
between their last sitting in one session and the date appointed  for  their
first sitting in the next session.
(2) Subject to the provisions of this article, the Governor may,  from  time
to time –
(a) summon the Houses or either House to meet at such time and place  as  he
thinks fit;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.
(3) The functions of the Governor under sub-clauses (a) and  (c)  of  clause
(2) of this article shall be exercised by him in his discretion.”

In the written comments submitted to draft Article 153, Jayaprakash  Narayan
suggested, that clause (3) of Article 153 should be  deleted.   It  was  his
submission, that there was no reason why the  Governor  in  his  discretion,
should  be  permitted  to  summon  or  dissolve  the  House,  when  no  such
discretionary power was being extended to the President (–  with  regard  to
summoning and dissolution, of the Parliament).  Another reason expressed  by
him for deleting the aforesaid clause  (3)  was,  the  changed  position  of
selection of Governors,  whereby  Governors  are  to  be  nominated  by  the
President, instead  of  being  elected,  as  hitherto  before.   When  draft
Article 153 came up for debate,  Mohd.  Tahir  suggested,  addition  of  the
following words at the end of  sub-clause  (c)  of  clause  (2)  –  “If  the
Governor is satisfied that the administration is failing  and  the  Ministry
has become unstable”.  It was canvassed, that merely because a Governor  did
not subscribe to the views of the majority party, he  should  not  have  the
discretion to dissolve the House.  It was asserted, that there could  be  no
other reason for the dissolution of a House, except  mal-administration  and
instability of the Government.  It was therefore,  that  Dr.  B.R.  Ambedkar
moved, that clause (3) of draft Article 153 be  omitted,  as  the  same  was
inconsistent with the scheme of a “constitutional” Governor.   When  put  to
vote, the amendment suggested by Mohd.  Tahir  was  rejected,  and  the  one
suggested by Dr. B.R. Ambedkar was adopted.  The  above  draft  Article  was
renumbered as Article 174 of the Constitution.
49.   Based on a collective reading of draft Article 153,  and  Article  174
of the Constitution, according to learned counsel, it was apparent that  the
original intention of the Constituent Assembly, to vest personal  discretion
with the Governor, for summoning, proroguing and dissolving the  House,  was
overruled.  The above historical background, it was  urged,  should  not  be
overlooked, and that, Article 174 should  be  interpreted  in  a  manner  as
would exclude the personal discretion of the  Governor,  in  the  matter  of
summoning, proroguing or dissolving the House(s) of the  State  Legislature,
in  consonance  with  the  obvious  intention  of   the   framers   of   the
Constitution.  Learned  counsel  for   the   appellants,   suggested   while
concluding, that the Governor in the present case, having no  discretion  to
unilaterally summon the Assembly, having done so, while  passing  the  order
dated 9.12.2015, had acted unconstitutionally.  Consequently,  according  to
learned counsel, all steps taken by the  Assembly,  pursuant  to  the  order
dated 9.12.2015 were liable to be set aside, as unconstitutional and void.
50.   The appellants also assailed  the  validity  of  the  message  of  the
Governor, dated 9.12.2015.  In order to  demonstrate  the  contours  of  the
authority of the Governor under Article 175, it was pointed  out,  that  the
precursor to Article 175, was Section 63 of the  Government  of  India  Act,
1935, which is extracted below:
“63. Right of Governor to address, and send messages to,  Chambers.-(l)  The
Governor may in his discretion address the Legislative Assembly or,  in  the
case of a Province having a  Legislative  Council,  either  Chamber  of  the
Provincial Legislature or both Chambers  assembled  together,  and  may  for
that purpose require the attendance of members.
(2) The Governor may in his discretion  send  messages  to  the  Chamber  or
Chambers of the Provincial Legislature, whether with respect to a Bill  then
pending in the Legislature or otherwise, and a Chamber to whom. any  message
is so sent shall with all convenient  dispatch  consider  any  matter  which
they are required by the message to take into consideration.”

Referring to the words “in  his  discretion”  used  in  sub-section  (2)  of
Section 63, it was submitted, that Article 175  vests  no  such  discretion,
with the Governor. It was therefore  contended,  that  the  framers  of  the
Constitution, did not intend to confer any discretion with the Governor,  in
the matter of sending messages (envisaged under Article 175).   Accordingly,
it was submitted, that no  authority  is  vested  with  the  Governor  under
Article 175(2), to send messages  in  respect  of  the  functioning  of  the
House, at his own.  It was pointed out, that there was no  question  of  any
right being vested with the Governor,  to  interfere  with  the  legislative
autonomy of the House, by addressing a message to the  House  under  Article
175.  It was submitted, that the message of the  Governor  dated  9.12.2015,
was beyond the purview of Article 175(2), and therefore, was  liable  to  be
declared unconstitutional.
51.   It  was  also  asserted,  that  the  message  of  the  Governor  dated
9.12.2015, contained directions to the  House.   The  aforesaid  directions,
according to learned counsel, would not fall within the purview of  messages
contemplated under Article 175(2).  It was pointed out,  that  the  ‘Conduct
of Business Rules’ framed under Article 208, assigned no such  role  to  the
Governor.  A Governor, according to learned  counsel,  cannot  determine  or
interfere with, any issue with reference to the conduct of business,  within
the Legislative Assembly.  In support of  the  above  proposition,  reliance
was placed on Rule  21,  of  the  ‘Conduct  of  Business  Rules’,  which  is
extracted below:
“Arrangement of Business, Provisional Programme and List of Business.
(a) Arrangement of Business:
21. Arrangement of Govt. business. On days allotted for the  transaction  of
Government business, such business shall have precedence and  the  Secretary
shall arrange that  business  in  such  order  as  the  Speaker  may,  after
consultation with the Leader of the House, determine:
Provided that such order of business shall not be varied  on  the  day  that
business is set down for disposal  unless  the  Speaker  is  satisfied  that
there is sufficient ground for such variation.”

Based on Rule 21, it  was  submitted,  that  a  Governor  has  no  right  to
determine the agenda of the business of the House.  Or  even,  the  sequence
in which the business of the House, was  to  be  conducted.   To  the  above
extent, it was submitted, that the message of the Governor dated  9.12.2015,
was not only unconstitutional,  but  also  violative  of  Rule  21.  It  was
therefore submitted, that it was not open to the Governor, to have  directed
the House, through his message dated 9.12.2015, to take  up  the  resolution
for removal of the Speaker, as the first item on the agenda, on  16.12.2015.
 A reference was also made to Rules 152 to 154 of the ‘Conduct  of  Business
Rules’, which are extracted below:
“152. Leave of House to take up resolution.- (1) Subject to  the  provisions
of Article 181 of the Constitution, the Speaker or  the  Deputy  Speaker  or
such other person as is referred to in clause (2)  of  Article  180  of  the
Constitution shall preside when a motion under rule  151  is  taken  up  for
consideration.
(2) The member in whose name the motion  stands  on  the  list  of  business
shall, except when he wishes to withdraw it, move  the  motion  when  called
upon to do so, but no speech shall be permitted at this stage.
153. Inclusion of Resolution in the list  of.-  On  the  appointed  day  the
Resolution shall be included in the list of business to be  taken  up  after
the questions and before any other business for the day is entered upon.
154. Time limit for speeches. – Except with the permission  of  the  Speaker
or the person presiding,  a  speech  on  the  Resolution  shall  not  exceed
fifteen minutes in duration:
Provided that the mover of the Resolution when moving  the  same  may  speak
for such longer time as the Speaker or the person presiding may permit.”

Based on the above Rules, it was urged, that the entire proceedings  in  the
Assembly, are to be regulated by the Speaker (or the  Deputy  Speaker),  and
that, the Governor has no role in the proceedings of the House.
52.   It was also contended, that the Governor is neither a  member  of  the
State Legislative Assembly, nor an officer of  the  State  Legislature,  and
therefore, a Governor can have  no  jurisdiction  in  the  functioning,  and
affairs  of  the  House.  It  was  accordingly  asserted,  that  the  intent
expressed in Article 168, should not be determined from  a  cursory  reading
thereof, but should  be  visualised  from  the  scheme  of  the  surrounding
provisions.  The Governor’s connectivity and relationship  with  the  House,
according to learned counsel, was  based  on  the  aid  and  advice  of  the
Council of Ministers headed by the Chief Minister.
53.   It was submitted, that the Governor has no  authority  whatsoever,  to
get embroiled with matters falling under the Tenth Schedule.  It was  urged,
that the Speaker, was the  sole  adjudicatory  authority,  under  the  Tenth
Schedule, and his actions thereunder cannot be interfered  with,  by  or  at
the behest of the Governor.  It was submitted,  that  even  the  Legislative
Assembly itself, could  not  interfere  with  the  Speaker’s  determination,
under the Tenth Schedule.  It was urged, that on the same analogy, even  the
Deputy Speaker of the House, had no authority whatsoever, to  set  aside  an
order passed by the Speaker under the Tenth Schedule.  It was  pointed  out,
that even the Speaker himself had no  power  or  discretion  to  review  the
order of disqualification dated 15.12.2015 (as in  the  present  case).   In
this behalf, reliance was placed on the following observations  recorded  in
Dr. Kashinath G. Jalmi v. The Speaker[7]:
“49. The power  of  review  which,  it  is  suggested  by  counsel  for  the
respondents, inheres in the Speaker  by  necessary  implication  has  to  be
found  in  the  provisions  made  in  the  Tenth  Schedule  alone,  and  not
elsewhere. Para 7 has to be treated as non-existent in  the  Tenth  Schedule
from the very inception, as earlier indicated. As held by  the  majority  in
Kihoto Hollohan 1992 Supp (2) SCC 651, judicial review is available  against
an order of disqualification made by the Speaker under para 6 of  the  Tenth
Schedule, notwithstanding the finality mentioned therein. It is  on  account
of the nature of finality attaching by virtue of para 6, that  the  judicial
review available against the Speaker's order has been  labelled  as  limited
in para 110 (at page 711 of SCC) of the decision in Kihoto Hollohan and  the
expression has to be understood in that sense distinguished  from  the  wide
power in an appeal, and no more. As held in Kihoto Hollohan,  the  Speaker's
order is final being subject only  to  judicial  review,  according  to  the
settled parameters of the exercise of  power  of  judicial  review  in  such
cases, which it is not necessary to elaborate in the  present  context.  The
existence   of   judicial   review   against   the   Speaker's   order    of
disqualification made under para 6 is itself  a  strong  indication  to  the
contrary that there can be no inherent power of review in the Speaker,  read
in the Tenth Schedule by necessary implication. The need for  correction  of
errors in the Speaker's order made under the Tenth Schedule is  met  by  the
availability of  judicial  review  against  the  same,  as  held  in  Kihoto
Hollohan.
50. In our opinion there is no merit in the submission  that  the  power  of
review inheres in the Speaker  under  the  Tenth  Schedule  as  a  necessary
incident of his jurisdiction to decide the question of disqualification;  or
that such a power existed till  November  12,  1991  when  the  decision  in
Kihota Hollohan (1992) 1 SCC 309 was rendered; or at least a  limited  power
of review inheres in the Speaker to correct any palpable error  outside  the
scope of judicial review.”

54.   It was the pointed assertion  of  learned  senior  counsel,  that  the
order of the Deputy Speaker dated 16.12.2015, quashing the  Speaker’s  order
dated 15.12.2015 (disqualifying 14 members of the House,  belonging  to  the
INC), was totally without jurisdiction.  It was  also  urged,  that  if  any
individual including the Deputy Speaker of the Assembly and/or the other  13
disqualified  members  of  the  House  were  aggrieved,  they   could   have
legitimately  taken  recourse  to  judicial  review,   either   before   the
jurisdictional High Court under Article 226,  or  before  this  Court  under
Article 32.  It was pointed out, that the  disqualified  MLAs  had  actually
assailed their  disqualification  orders  before  the  High  Court.  It  was
accordingly submitted, that the decision of  the  Deputy  Speaker,  quashing
the order of the Speaker dated 15.12.2015  (disqualifying  14  MLAs  of  the
INC), was per se unconstitutional, it lacked jurisdictional  authority,  and
as such, was unacceptable in law.
55.   In addition to the above, it was submitted, that  the  Deputy  Speaker
of the Assembly – Tenzing Norbu Thongdok was one of the 14 INC MLAs  of  the
Assembly disqualified by the Speaker vide his order  dated  15.12.2015.   As
such, it was urged, that it was not open  to  the  Deputy  Speaker,  to  set
aside the order of his own disqualification.  It  was  submitted,  that  the
aforesaid determination at the hands of the Deputy Speaker, amounted to  the
Deputy Speaker acting as a judge in his own  cause.   It  was  pointed  out,
that not only his action was illegal, but the same  was  also  violative  of
the rules of natural justice.  With  reference  to  the  importance  of  the
validity  (or  invalidity)  of  the  order  of  the  Deputy  Speaker   dated
16.12.2015, it was pointed out, that in case the above order  was  found  by
this  Court  to  be  unacceptable  in  law,  the  participation  of  the  14
disqualified MLAs belonging to the INC, in the proceedings of the  House  on
16.12.2016 – and thereafter, was liable to be considered as non est  in  the
eyes of law.   It is important for us to record, that the validity of  above
order of the Deputy Speaker, is sub-judice before  the  jurisdictional  High
Court at Guwahati.
56.   It was submitted, that the  proceedings  of  the  Assembly  held  with
effect from 16.12.2015, till the House was prorogued on 18.12.2015 with  the
participation of the 14 disqualified MLAs belonging to the INC, was  nothing
but an overt political act of the BJP MLAs, supported by  the  Governor,  to
undermine the democratic process in the State. It was submitted,  that  once
the Governor had summoned the leader of  the  political  party,  having  the
largest  strength  amongst  the  different  political   parties,   to   form
Government, without any support from any other political party,  the  action
of the Governor expressed through the order and message dated 9.12.2015  was
absolutely undemocratic, and unconstitutional.
57.   Mr. F.S. Nariman,  learned  Senior  Advocate  entered  appearance,  in
support of the claim raised by the appellants.  He represented Bamang  Felix
– Deputy Chief Whip of the INC.   In  his  opening  statement,  Mr.  Nariman
adopted the factual and the legal submissions advanced on  behalf  of  Nabam
Rebia.  He pointed out, that he affirmed the  submissions  advanced  by  Mr.
Kapil Sibal,  but  would  assist  the  Court,  by  projecting  some  further
constitutional aspects.
58.   In the first instance, learned senior counsel placed reliance  on  two
reports.  The first – the Justice Sarkaria Commission  report,  on  “Centre-
State Relations”, and the second  –  the  Justice  M.M.  Punchhi  Commission
report,  on  “Constitutional  Governance  and  Management  of   Centre-State
Relations”.  It was pointed out, that in  the  Justice  Sarkaria  Commission
report, Chapter 5 was attributed to the role of the Governor.   And  in  the
Justice M.M. Punchhi Commission report, Chapter 4 was ascribed to  the  role
of the Governor.  It was asserted, that reference to both the reports  would
be repetitive, inasmuch as, the conclusions drawn in  the  Justice  Sarkaria
Commission report, had been substantially affirmed  and  reiterated  in  the
Justice M.M. Punchhi Commission report.   It  was  therefore,  that  learned
counsel placed reliance only on the Justice M.M. Punchhi Commission  report.
He invited our attention to paragraph 4.1.03, of  the  report,  wherein  the
Commission adopted the reasoning expressed during  the  proceedings  of  the
Constituent Assembly for arriving at its conclusions.   Reference  was  also
made to  paragraphs  4.2.09  to  4.2.15  highlighting  the  fact,  that  the
Governor in  exercise  of  his  functions,  cannot  act  in  his  individual
capacity, especially when the function  sought  to  be  discharged  (by  the
Governor), is in the realm of executive  dispensation.   Reliance  was  also
placed on paragraph 4.3 of the report (in  its  entirety),  which   expounds
the proposition, that it is not expected of the Governor to embroil  himself
in day-to-day activities of rival political  parties,  and  that,  Governors
are expected to be independent, and  to  act  in  a  manner  devoid  of  any
political consideration. It was  pointed  out,  that  independence  of  such
actions would include, keeping  the  State  Legislature  and  the  political
executive, shielded  from  the  political  will  of  the  Union  Government.
Especially when the concerned State and the Union were  not  being  governed
by the same political party/conglomerate. Last of all, reliance  was  placed
on paragraph  4.5,  and  more  particularly,  on  sub-paragraph  4.5.03,  to
demonstrate, that a reading of the constitutional  provisions  had  resulted
in the two Commissions very clearly expounding, that the Governor was  bound
to act in consonance with the  aid  and  advice  tendered  to  him,  by  the
Council of Ministers and the Chief Minister.  It was pointed out,  that  the
aforesaid mandate was also applicable to  situations,  where  provisions  of
the Constitution had used expressions like “he thinks fit”.  It was  pointed
out, that only in situations, where  a  constitutional  provision  expressly
requires the Governor to exercise his functions in his  own  discretion,  it
is open to the  Governor  to  do  so.   Only  then,  the  exercise  of  such
discretion,  will  be  deemed  to  have  been  constitutionally   exercised.
Paragraphs of the Justice M.M. Punchhi Commission  report,  relied  upon  by
learned senior counsel, are extracted hereunder:
“4.1.03 Dr. B.R.  Ambedkar,  highlighted  the  Constitutional  role  of  the
Governor in following terms:
"The  Governor  under  the  Constitution  has  no  functions  which  he  can
discharge by himself; no functions at all. While he  has  no  functions,  he
has certain duties to perform, and I think the House will do  well  to  bear
in mind this distinction. This Article (Article 167)  certainly,  it  should
be borne in mind, does not confer upon the Governor the  power  to  overrule
the Ministry  on  any  particular  matter.  Even  under  this  Article,  the
Governor is bound to accept  the  advice  of  the  Ministry…  This  Article,
nowhere, either in clause (a) or clause (b) or clause  (c),  says  that  the
Governor  in  any  particular  circumstances  may  overrule  the   Ministry.
Therefore, the criticism that  has  been  made  that  this  Article  somehow
enables the Governor to interfere or to upset the decision  of  the  Cabinet
is entirely beside the point, and completely mistaken.
A distinction has been made between the functions of the  Governor  and  the
duties which the Governor has to perform. My  submission  is  that  although
the Governor has no functions still, even the Constitutional Governor,  that
he is, has certain duties to perform. His duties according  to  me,  may  be
classified in two parts. One is, that he  has  to  retain  the  Ministry  in
office. Because, the Ministry is to hold office during his pleasure, he  has
to see whether  and  when  he  should  exercise  his  pleasure  against  the
Ministry. The second duty which the Governor  has,  and  must  have,  is  to
advice the Ministry, to warn the Ministry, to suggest  to  the  Ministry  an
alternative and to ask for a reconsideration. I do not  think  that  anybody
in this House will question the fact that  the  Governor  should  have  this
duty cast upon  him;  otherwise,  he  would  be  an  absolutely  unnecessary
functionary: no good at all. He is the representative not of a party; he  is
the representative of the people as a whole of the State. It is in the  name
of the people that he carries on the administration. He must  see  that  the
administration is carried on at a level  which  may  be  regarded  as  good,
efficient, honest administration. I submit  that  he  cannot  discharge  the
constitutional functions of a Governor which I have just referred to  unless
he is in a position to obtain the information… It is to enable the  Governor
to discharge his functions in respect of  a  good  and  pure  administration
that we propose to give the Governor the power to call for any information…
4.2.09 The Governor does not exercise the executive  functions  individually
or personally. The  State  Government  at  various  levels  takes  executive
action in the name of the Governor in accordance with the rules of  business
framed under Article 166(3). Hence, it is the State Government and  not  the
Governor who may sue or be sued in  respect  of  any  action  taken  in  the
exercise and performance of the powers and duties of  his  office  [Articles
361, 299(2) and 300].
4.2.10 The Governor enjoys the same privileges as the President  does  under
Article 361 and he stands, in this respect, on  the  same  footing.  Article
361 states that neither the President nor  the  Governor  can  be  sued  for
executive actions  of  the  Government.  The  reason  is  that  neither  the
President nor the Governor exercises the  executive  functions  individually
or personally.
4.2.11 The Governor is not answerable to any court for the exercise and  the
performance of the powers and duties of his office, or for 'any act done  or
purporting to be done by him' in  the  exercise  and  performance  of  those
duties. The words 'purporting to be done by him' are of  very  wide  import,
and even though, the act is outside the scope of his powers, so long  it  is
professed to be done in pursuance of the Constitution, the Governor will  be
protected.
4.2.12  Lack  of  bona-fide  vitiates  executive  action,  but  due  to  the
operation of Article 361 the Governor is not  personally  responsible.  Even
where  the  Governor's  bonafide  is  in  question  while   exercising   his
discretionary powers, such as appointment and dismissal of  Chief  Minister,
he cannot be called to enter upon defense. The Madras High  Court  had  held
that a combined reading of Articles 154, 163 and 361  would  show  that  the
immunity  against  answerability  to  any  Court  is   regarding   functions
exercised by the Governor qua Governor and those  functions  in  respect  of
which he acts  on  the  advice  of  the  Council  of  Ministers  or  in  his
discretion.
4.2.13 In the recent case of  Rameshwar  Prasad,  Chief  Justice  Sabharwal,
while stating the  majority  opinion  held:  The  immunity  granted  to  the
Governor under Article 361(1) does not affect the  power  of  the  Court  to
judicially scrutinize the attack  made  to  the  proclamation  issued  under
Article 361(1) of the Constitution of India on the ground of mala  fides  or
it being ultra vires. It would be for the Government to  satisfy  the  court
and adequately meet such ground of challenge. A  mala  fide  act  is  wholly
outside the scope of the power and has no existence  in  the  eyes  of  law.
Even, the expression "purporting to be done"  in  Article  361(1)  does  not
cover acts which are mala fide or ultra  vires  and,  thus,  the  Government
supporting the proclamation under Article 361(1)  shall  have  to  meet  the
challenge.
The personal immunity from answerability provided  in  Article  361(1)  does
not bar the challenge that may be made to their  actions.  Under  law,  such
actions including those actions where the challenge  may  be  based  on  the
allegations of mala fides are required to be defended by Union of  India  or
the State, as the case may be. Even in cases where the personal  mala  fides
are alleged and established, it would not be  open  to  the  Governments  to
urge that  the  same  cannot  be  satisfactorily  answered  because  of  the
immunity  granted.  In  such  an  eventuality,  it  is  for  the  respondent
defending the action to satisfy  the  Court  either  on  the  basis  of  the
material on record or even filing the affidavit of the person  against  whom
such allegation of personal mala fides are made.  Article  361(1)  does  not
bar filing of an affidavit if one wants to file on his own. The bar is  only
against the power of the Court to issue notice or making  the  President  or
the Governor answerable.  In  view  of  the  bar,  the  Court  cannot  issue
direction to President or Governor for even filing of  affidavit  to  assist
the Court.
4.2.14 In a very limited field, however, the Governor may  exercise  certain
functions in his discretion, as provided in Article 163(1). The  first  part
of Article 163(1) requires the Governor to act on the advice of his  Council
of Ministers. There is, however, an exception in  the  latter  part  of  the
clause in regard to matters  where  he  is  by  or  under  the  Constitution
required to function in his discretion. The expression "required"  signifies
that the Governor can exercise his discretionary powers only if there  is  a
compelling necessity to do so. It has been held that the expression  "by  or
under the Constitution" means that the necessity  to  exercise  such  powers
may arise from any express provision of the  Constitution  or  by  necessary
implication. We would like to add that such necessity may  also  arise  from
rules and orders made "under" the Constitution."
4.2.15 Thus, the scope of discretionary powers as provided in the  exception
in clause (1) and in clause (2) of Article  163  has  been  limited  by  the
clear language of the two clauses. It is an accepted  principle  that  in  a
parliamentary democracy with a responsible form of  government,  the  powers
of the Governor as Constitutional or formal head of the State should not  be
enlarged at the cost of the real executive, viz. the Council  of  Ministers.
The scope of discretionary powers has to be strictly construed,  effectively
dispelling the apprehension, if any, that  the  area  for  the  exercise  of
discretion covers all or any  of  the  functions  to  be  exercised  by  the
Governor under the Constitution. In other words, Article 163 does  not  give
the Governor a general discretionary power to act  against  or  without  the
advice of his Council of  Ministers.  The  area  for  the  exercise  of  his
discretion is limited. Even this limited area, his choice of  action  should
not be arbitrary or fanciful. It  must  be  a  choice  dictated  by  reason,
actuated by good faith and tempered by caution.
4.3 Role of Governor in Management of Centre-State Relations
4.3.01 The role of the Governor has been a  key  issue  in  the  matters  of
Central State relations. The Constitution of India envisages three tiers  of
Government - the Union, State and the Local Self-Government.  In  the  light
of a  volatile  Political  system  prevailing  today,  it  is  pertinent  to
recognize the crucial role played by the Governors in  the  working  of  the
democratic framework. Addressing the Conference of Governors in  June  2005,
the President of India, Dr. A.P.J. Abdul Kalam  stressed  the  relevance  of
recommendations of the Sarkaria Commission and observed  that  "While  there
are many checks and balances provided by the  Constitution,  the  office  of
the Governor has been bestowed with the independence to rise above the  day-
to-day politics and override compulsions either emanating from  the  central
system or the state system. “The Prime Minister, Dr. Manmohan Singh  on  the
same occasion noted that "you are  the  representatives  of  the  centre  in
states and hence, you bring a national perspective to  state  level  actions
and activities”. The then Vice-President of India,  Shri  G.S.  Pathak,  had
remarked in 1970 that "in the sphere which is bound by  the  advice  of  the
Council of Ministers, for obvious reasons, the Governor must be  independent
of the center" as there may be cases "where the advice  of  the  Center  may
clash with advice of the State Council  of  Ministers"  and  that  "in  such
cases the Governor must ignore the Centre's "advice" and act on  the  advice
of his Council of Ministers."
4.3.02 One highly significant role which he (Governor)  has  to  play  under
the Constitution is of making a report where he finds that a  situation  has
arisen in which the  Government  of  the  State  cannot  be  carried  on  in
accordance with the provisions of the  Constitution.  The  Governor  is  not
amenable  to  the  directions  of  the  Government  of  India,  nor  is   he
accountable to them for the manner in which he  carries  out  his  functions
and duties. He is an independent constitutional office which is not  subject
to the control of the Government of India.
4.3.03 The Court in Rameshwar Prasad case affirmed the  following  views  of
the  Sarkaria  Commission  that  the  Governor  needs  to  discharge   "dual
responsibility" to the Union and the State. Further, most of the  safeguards
as regards the working of the Governor will be such as cannot be reduced  to
a set of precise rules of procedure or practice. This is so because  of  the
very nature of the office and the role of the Governor. The safeguards  have
mostly to be in the nature of conventions and practices,  to  be  understood
in their proper perspective and faithfully  adhered  to,  not  only  by  the
Union and the State Governments but also by the political parties.
4.5 Powers of  the  Governor  in  the  Context  of  Harmonious  Centre-State
Relations
Article 163 of the Constitution, unlike Article 74, carves out two  ways  in
which the power of the  Governor  must  be  exercised.  One,  in  which  the
Governor has to act in accordance with the aid and advice of the Council  of
Ministers and two, where he exercises his personal discretion.  The  concept
of the Governor acting in his discretion or exercising independent  judgment
is not alien to the Constitution. The normal rule is that the Governor  acts
on the aid and advice of the Council of Ministers, but there are  exceptions
under which the Governor can act  in  his  own  discretion.  The  powers  in
exercise of which the Governor has to use his personal discretion  have  now
been settled through judicial pronouncements. In relation to  other  powers,
even though the Constitution uses phrases  like  "he  thinks  fit"  and  "in
exercise of his discretion", the Governor must act on the aid and advise  of
the Council of Ministers.
Article 163(2) gives an impression that the Governor has a  wide,  undefined
area of discretionary powers even outside situations where the  Constitution
has expressly provided for it. Such an impression  needs  to  be  dispelled.
The Commission is of the view that the scope of discretionary  powers  under
Article 163(2) has to be  narrowly  construed,  effectively  dispelling  the
apprehension, if any, that the so-called  discretionary  powers  extends  to
all the functions that the Governor is  empowered  under  the  Constitution.
Article 163 does not give the Governor a general discretionary power to  act
against or without the advice of his Council  of  Ministers.  In  fact,  the
area for the exercise of discretion is limited  and  even  in  this  limited
area, his choice of action should not be  nor  appear  to  be  arbitrary  or
fanciful. It must be a choice dictated by reason, activated  by  good  faith
and tempered by caution.
The Governor's discretionary powers are the following:  to  give  assent  or
withhold or refer a Bill for Presidential  assent  under  Article  200;  the
appointment of  the  Chief  Minister  under  Article  164;  dismissal  of  a
Government which has lost confidence but refuses to quit,  since  the  Chief
Minister holds office during the pleasure of the  Governor;  dissolution  of
the  House  under  Article  174;  Governor's  report  under   Article   356;
Governor's responsibility for certain regions under  Article  371-A,  371-C,
371-E, 371-H etc. These aspects are now considered below:
4.5.03 Dismissal of the Chief Minister
It has already been stated that the Council of Ministers occupy office  upon
the pleasure of the Governor. Further, Article 164 states  that  Council  of
Ministers shall be collectively responsible to the Legislative  Assembly  of
the State. So the question  arose  as  to  whether  the  discretion  of  the
Governor or his pleasure is curtailed by the  fact  that  the  Ministers  no
longer enjoy the confidence  of  the  House.  Courts  have  time  and  again
clarified that the discretion  of  the  Governor  is  not  fettered  by  any
condition or restriction. It was held that the Assembly could  only  express
want of confidence in the Ministry; it can  go  no  further.  The  power  to
dismiss solely and entirely rests with the Governor. However, the fact  that
the  Ministry  has  lost  confidence  is  a  major  consideration  for   its
dismissal.
The  Sarkaria  Commission  recommended  that  if  a  Government  loses   its
majority, it should be given a chance to prove whether it has a majority  or
not on the floor of the House. The Governor should not dismiss a Council  of
Ministers, unless the Legislative Assembly has expressed  on  the  floor  of
the House its want of confidence in it. He should advise the Chief  Minister
to summon the Assembly as early as possible. If the Chief Minister does  not
accept the Governor's advice, the Governor may, summon the Assembly for  the
specific purpose of testing the  majority  of  the  Ministry.  The  Assembly
should be  summoned  to  meet  early  within  a  reasonable  time.  What  is
"reasonable" will depend on the circumstances of  each  case.  Generally,  a
period of 30 days will be reasonable, unless there is very  urgent  business
to be transacted, such as passing the  Budget,  in  which  case,  a  shorter
period may be indicated. On the question of dismissal of a  Chief  Minister,
the Governor should invariably insist on  the  Chief  Minister  proving  his
majority on the floor of the House for which  he  should  prescribe  a  time
limit. This view of the Sarkaria Commission ought to be  considered  in  the
form of a Constitutional Amendment.
4.5.04 Summoning, proroguing and dissolution of the legislative assembly
Article 174 of the Constitution empowers the Governor  to  summon,  prorogue
or dissolve the House. It is a well-recognised principle that,  so  long  as
the Council of Ministers enjoys the confidence of the Assembly,  its  advice
in these  matters,  unless  patently  unconstitutional  must  be  deemed  as
binding on the Governor. It is only where such advice, if acted upon,  would
lead to an infringement of a constitutional provision, or where the  Council
of Ministers has ceased to enjoy the confidence of the  Assembly,  that  the
question arises whether  the  Governor  may  act  in  the  exercise  of  his
discretion. The Sarkaria Commission recommended that, if the Chief  Minister
neglects or refuses to summon the Assembly for holding a "Floor  Test",  the
Governor should summon the Assembly for the purpose. As  regards  proroguing
a House of Legislature, the Governor should normally act on  the  advice  of
the Chief Minister. But where the latter advises prorogation when  a  notice
of no-confidence motion  against  the  Ministry  is  pending,  the  Governor
should not straightaway  accept  the  advice.  If  he  finds  that  the  no-
confidence motion represents a legitimate challenge from the Opposition,  he
should advice the Chief  Minister  to  postpone  prorogation  and  face  the
motion. As far as dissolution of the House is  concerned,  the  Governor  is
bound by the  decision  taken  by  the  Chief  Minister  who  has  majority.
However, if the advice is rendered by a  Chief  Minister  who  doesn't  have
majority, then the Governor can try to see if an  alternate  government  can
be formed and only if that isn't possible, should the  house  be  dissolved.
This Commission reiterates the recommendations of  the  Sarkaria  Commission
in this regard.”

59.   Learned senior counsel then placed  reliance  on  Article  166,  which
postulates the manner of conducting the  executive  business  of  the  State
Government.  It was pointed out, that the Governor, has  been  assigned  the
responsibility of framing  rules  under  Article  166.   For  the  State  of
Arunachal Pradesh, these rules were notified on  9.4.1987  –  the  Arunachal
Pradesh Rules of Executive Business, 1987 (hereinafter referred to  as,  the
Rules of Executive Business).  It was submitted, that Part-I  of  the  Rules
of Executive Business containing Rules 4  to  12  are  clustered  under  the
heading  –  “Allocation  and  Disposal  of   Business”.    Whereas   Part-II
containing Rules 13 to 21, are grouped under the  heading  –  “Procedure  of
the Cabinet”.  Learned counsel thereupon, invited our attention  to  Rule  4
from Part-I and Rules 13 and 14 from  Part-II,  which  are  being  extracted
hereunder:
                                   Part I
            xxx              xxx             xxx
Rule 4
“4. The business of the Government shall  be  transacted  in  its  different
departments.  Allocation of subjects among the  departments  shall  continue
to be as set out in the Government of Arunachal Pradesh (Allocation)  Rules,
1975 (as notified from time to time) until new Rules are prescribed.”
                                   Part II
            xxx              xxx             xxx
Rules 13 and 14
“13. The Chief Secretary shall be the Secretary to the Cabinet  and  another
officer shall be designated to be the Joint Secretary to  the  Cabinet.   In
the absence of both the Chief Secretary  and  the  Joint  Secretary  to  the
Cabinet the Chief Minister may appoint for this purpose any other  Secretary
to function as the Secretary to the Cabinet.
14. All cases referred to as in the schedule shall, after  consideration  by
the Minister be sent to the Secretary with a view  to  obtaining  orders  of
the Chief Minister for  circulation  of  the  case  under  Rule  16  or  for
bringing it for consideration at a meeting of the Cabinet.”

60.   Learned counsel then drew our attention to the  Schedule  referred  to
in Rules 8 and 14, and further invited our attention, to item  no.4  in  the
said Schedule which is extracted below:
“Proposals to summon, prorogue or dissolve the legislature of the State”.

It was urged on behalf of the appellants, that in the  matter  of  summoning
the House for 16.12.2015, the procedure contemplated under Rules 8,  13  and
14 ought to have been adopted.  But the same was breached.   Learned  senior
counsel further pointed out, that while passing the  order  dated  3.11.2015
(when the same Governor had summoned the 6th session of the  House  to  meet
at 10 a.m. on 14.1.2016), the procedure contemplated under Rules  8  and  14
was  duly  followed.   Learned  counsel  then  referred  to  the   summoning
particulars to demonstrate, that the proposal to summon the 6th  session  of
the House, had emanated from the Chief Minister.  The Court’s attention  was
also invited to the fact, that the Speaker of the  Assembly  had  also  been
consulted, on  the  matter,  as  also  the  duration  of  the  6th  session,
whereupon, the Chief Minister submitted the outcome on  the  matter  to  the
Governor.  It was pointed out, that  the  Governor  had  duly  accepted  the
proposal, and had scheduled the 6th session of the Assembly, to meet  at  10
a.m. on 14.1.2016.  It was asserted,  that  the  above  rules  framed  under
Article 166 were binding and every constitutional authority,  including  the
Governor of the State, who is bound to carry  out  his  functions/duties  in
compliance therewith.
61.   In addition to the above, our attention was invited  to  the  ‘Conduct
of Business Rules’,  framed  under  Article  208.   Learned  senior  counsel
pointedly drew our attention to Rule 3, which is extracted hereunder:
“3. The Chief Minister shall, in consultation  with  the  Speaker,  fix  the
date of commencement and the duration of the session,  advise  the  Governor
for summoning the Assembly under Article 174 of the Constitution.”

A  perusal  of  the  above  rule,  according  to  learned  senior   counsel,
postulates a procedure, similar to the one contemplated under the  Rules  of
Executive Business, framed under Article 166.  It  was  submitted,  that  in
view of the clear mandate of Rule 3 extracted above, not only the  Rules  of
Executive Business, framed under Article 166 must be  deemed  to  have  been
breached by the Governor (through his order dated 9.12.2015),  the  Governor
must also be deemed to have breached Rule  3  of  the  Conduct  of  Business
Rules, framed under  Article  208.   It  was  therefore  the  contention  of
learned counsel for the appellants, that the order  of  the  Governor  dated
9.12.2015, preponing the 6th  session  of  the  Assembly  from  the  earlier
determined date – 14.01.2016, by summoning it for 16.12.2015, was in  breach
of the rules framed under the Constitution, and was liable to be set  aside.

The foundation of the respondents’ case:
The third sequence of facts:
62.   A notice of resolution for the removal of the Speaker –  Nabam  Rebia,
was moved on 19.11.2015.  This factual position  is  not  in  dispute.   The
authors of this notice were 13  MLAs  –  11  belonging  to  the  BJP  and  2
Independent MLAs.  It was submitted on behalf  of  the  appellants,  that  a
notice of resolution dated 16.11.2015 was moved by 16  MLAs,  all  belonging
to the INC, for the removal of the Deputy Speaker - Tenzing Norbu  Thongdok.
 This factual position is disputed at the hands  of  the  respondents.   The
claim of the respondents before this Court was, that no such resolution  had
been moved under Article 179, for the removal of the Deputy Speaker.  During
the course of hearing, we ventured to determine the  factual  position.   In
support of their assertion, learned counsel for the appellants  invited  our
attention to  a  xerox  copy  of  the  notice  dated  16.11.2015,  which  is
reproduced below:
“To,
The Secretary
Arunachal Pradesh Legislative Assembly
Naharlagun.
Sub: Resolution for Removal of  Deputy  Speaker,  under  Article  179(c)  of
Constitution of India and Rule 151 (Chapter XX) of Rules  of  procedure  and
conduct of Business AP Legislative Assembly.
Sir,
We the Members of the 6th Arunachal Pradesh Legislative Assembly do here  by
move this resolution as per the Articles and Rules  quoted  in  the  subject
cited above.  The specific Charges  against  the  incumbent  Deputy  Speaker
warranting his removal from the post are as below:
1.    The Deputy Speaker is absent from attending  his  office  continuously
for a period three months which shows disability to hold the post of  Deputy
Speaker
2.     The  Deputy  Speaker  is  involved  in  active  political  dissidence
activity and thereby demeaning the office of the  Deputy  Speaker  and  also
there by the neutrality and sanctity  of  the  Legislative  Assembly  is  at
stake.
Therefore, we request you to kindly  accept  this  resolution  and  initiate
necessary action immediately.
                                                            Yours Sincerely”

All 16 MLAs had affixed their signatures, below the  above  notice.   Having
perused the aforesaid document,  and  having  found  no  clear  endorsements
thereon (depicting the receipt thereof, in  the  office  of  the  Secretary,
Arunachal  Pradesh  Legislative  Assembly),  we  called  for  the  original.
During the hearing, learned counsel representing the appellants adopted  the
stance, that the original resolution was in the custody of the  respondents,
whereas, learned counsel  for  the  respondents  pleaded  to  the  contrary,
namely, that the  same  was  in  the  custody  of  the  appellants.   It  is
therefore apparent, that  even  though  the  Court  desired  to  peruse  the
original resolution moved by 16 MLAs for the removal of the Deputy  Speaker,
the same was never produced for consideration.  For sure the appellants,  if
nothing else, could have filed an affidavit of the concerned 16 MLAs,  along
with a copy of the resolution.  But they did nothing of the sort.
63.   Despite the above, it was asserted on behalf of the respondents,  that
there was substantial material on the record of  the  case,  to  demonstrate
that such a resolution had never been moved.  In  order  to  establish  that
the notice dated 16.11.2015 was actually submitted, learned counsel for  the
appellants referred to a letter dated  7.12.2015  addressed  by  the  Deputy
Secretary – Minik Damin (attached to the Governor), to the Secretary of  the
Legislative Assembly.  The above communication which bore  reference  number
GS/I-115/00 (Vol.II)/6742, is being extracted hereunder:

“To
      The Secretary,
Arunachal Pradesh Legislative Assembly,
Arunachal Pradesh,
Naharlagun.
Sub: Notice of Resolution for removal of Deputy Speaker.
Sir,
      I am directed to inform you that there is a Notice of  Resolution  for
removal of  Deputy  Speaker.   A  copy  of  the  resolution  may  kindly  be
forwarded to this Office for information and perusal of His  Excellency  the
Governor.  The Hon’ble Governor  would  also  like  to  have  the  following
information on the above stated resolution at the earliest.
Date of  receipt  of  the  notice  of  the  resolution  in  the  Legislative
Assembly.
Action taken by the Legislative Assembly on the notice.
Highlight of the precedents, if any.
Kindly ensure that replies of above points are sent latest by 8th  December,
2015.
                                                           Yours faithfully,
                                                          signed (illegible)
                                                                  07.12.2015
                                                               (Minik Damin)
                                               Deputy Secretary to Governor”

The  aforesaid  communication,  according  to  learned   counsel   for   the
appellants, was responded to by the Secretary of  the  Legislative  Assembly
on the following day, i.e., 8.12.2015.  The response is extracted below:
“To,
The Secretary to Governor,
Governor’s Secretariat,
Raj Bhawan,
Itanagar.

Sub:  Notice of Resolution of Removal of Hon’ble Deputy Speaker.
Sir,
      With reference to your letter No. GS/1-115/00 (Vol-II) 6742 dated  7th
December, 2015  on  the  above  mentioned  subject,  I  am  to  furnish  the
following information required by you for kind perusal  of  His  Excellency,
the Governor.
|1.   |Date of Receipt of the      |:    |16th November, 2015.  |
|     |Notice of the Resolution of |     |                      |
|     |the Legislative Assembly.   |     |                      |
|2.   |Action Taken by the         |:    |File processed and    |
|     |Legislative Assembly on     |     |under consideration of|
|     |Notice                      |     |Hon’ble Speaker.      |
|3.   |Highlight of the precedent. |:    |Nill                  |
|[pic]                             |   Yours faithfully,        |
|                                  |signed                      |
|                                  |8/XII/15                    |
|                                  |(M.LASA)                    |
|                                  |Secretary,                  |
|                                  |Arunachal Pradesh           |
|                                  |Legislative Assembly,       |
|                                  |Naharlagun.                 |


                 Signed (illegible)
                 8/12/15”

64.   Learned counsel for the appellants emphatically pointed out, that  the
reply of the Secretary of the Legislative Assembly,  was  expressly  to  the
letter  bearing  reference  number   GS/1-115/00(Vol-II)/6742.    The   said
reference number was  recorded  in  the  letter,  addressed  by  the  Deputy
Secretary attached to the Governor. Additionally, it was pointed  out,  that
the Secretary to the Governor was pointedly informed,  that  the  notice  of
the resolution of the Legislative Assembly for the  removal  of  the  Deputy
Speaker, was received in the office of  the  Secretary  of  the  Legislative
Assembly on 16.11.2015.  And it was noted in the reply, that  the  file  was
processed, and was under consideration of the  Speaker.   It  was  therefore
asserted on behalf  of  the  appellants,  that  the  Governor  had  complete
information about the  initiation  of  the  notice  of  resolution  for  the
removal of the Deputy Speaker under  Article  179,  and  yet,  the  Governor
continued to feign ignorance about the same.
65.   In order to controvert the factual position brought to our  notice  on
behalf of the  appellants,  learned  senior  counsel  for  the  respondents,
placed reliance on a note of Tage Habung – Superintendent of  Police-cum-ADC
to Governor, and  the  endorsement  recorded  thereon,  which  is  extracted
below:
                                 “N O T E
      Today dated 8th  Dec’2015,  I  had  gone  to  L/Assembly  secretariat,
Naharlagun and meet 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  Assembly,
Naharlagun regarding the notice of resolution for  removal  of  speaker  and
deputy speaker.  It is learned  that  the  said  file  is  at  the  official
residence of Hon’ble Speaker at Itanagar.
      Further it is learned that Hon’ble speaker is  on  tour  in  his  home
constituency.  He is likely to return late night today.
      For information please.
                                                          signed (illegible)
                                                            (Tage Habung) SP
                                                             ADC to Governor
Dy. Secretary to Governor
[pic]
H.E. may like to Peruse Please.
                       Signed
                       8.12.15
                       D.S.
      Illegible
      signed
      08.12.15”

Based on the note/endorsement extracted above, it was submitted,  that  even
though the Deputy Secretary  to  the  Governor,  through  his  communication
dated 7.12.2015, had sought “A copy of ...” the  notice  of  resolution  for
the removal of the Deputy Speaker – Tenzing Norbu  Thongdok,  the  same  was
not furnished to the Governor. Further more, it was  pointed  out  from  the
note/endorsement dated 8.12.2015 (of the  Superintendent  of  Police-cum-ADC
to the Governor), that even on his visit to the office of the Speaker,  when
he had met the Secretary,  the  Additional  Secretary  and  the  Officer-on-
Special Duty to the Speaker, he was not furnished with a copy of the  notice
of resolution for  the  removal  of  the  Deputy  Speaker.   Rather  he  was
informed, that the same was in the personal custody of the Speaker, who  was
on tour in his home  constituency.   Learned  counsel  for  the  respondents
wishes us to draw a very important inference, from their instant  assertion.
 That, the factum of the  custody  of  the  notice  of  resolution  for  the
removal of the Deputy Speaker, was allegedly in the custody of  the  Speaker
of the House, and  that,  the  Speaker  never  ever  produced  the  original
thereof.  And the Speaker, who is one of the appellants before  this  Court,
did not produce the same, even when it was called  for  by  the  Court.  And
secondly, despite repeated efforts made by the Governor, to  obtain  a  copy
of the notice of resolution for the removal of the Deputy Speaker –  Tenzing
Norbu Thongdok, no such copy was ever furnished to him,  by  the  office  of
the Secretary of the Legislative Assembly.

66.   More important than the factual  inferences  drawn  in  the  foregoing
paragraph, was the assertion at the  hands  of  the  respondents,  that  the
letter addressed by the Secretary of Legislative Assembly  dated  8.12.2015,
to the Secretary to the Governor extracted hereinabove,  was  a  forged  and
fabricated document.  The accusation was aimed at the appellants, who  alone
could be beneficiaries of the above resolution.  To  demonstrate,  that  the
communication dated 8.12.2015 was a  forged  and  fabricated  document,  the
Court’s attention was drawn towards a similar intimation, about  the  notice
of resolution for the removal of  the  Speaker,  on  the  very  same  day  –
8.12.2015.   The   above   communication,   bearing    endorsement    number
LA/Leg.26/2015, is extracted hereunder:-
                                       “Dated Naharlagun, the 8th Dec, 2015.
To,
      The Secretary to Governor,
      Governor Secretariat,
      Raj Bhawan Itanagar,
      Arunachal Pradesh.

Sub:- Notice of Resolution for Removal of Hon’ble Speaker.
Sir,
      With reference to your  Letter  No.GS/1-115/00  (Vol.II)  6743,  Dated
07/12/2015, on the above mentioned subject, I am to  furnish  the  following
information  required  by  you  for  kind  perusal  of  His  Excellency  the
Governor.

|1.       |Date of receipt of the     |19/11/2015              | |
|         |notice of the resolution of|                        | |
|         |the Legislative Assembly.  |                        | |
|2.       |Action taken by the        |File processed and under| |
|         |Legislative Assembly on the|consideration of Hon’ble| |
|         |notice                     |Speaker                 | |
|3.       |Highlight of the           |Nil.                    | |
|         |precedents, if any.        |                        | |
|[pic]                |      Yours faithfully,                  |
|                     |signed                                   |
|                     |(M. Lasa)                                |
|                     |Secretary,                               |
|                     |Arunachal Pradesh, Legislative Assembly  |
|                     |Naharlagun.”                             |

It was the submission of learned senior counsel for  the  respondents,  that
the letter-head on which  the  two  communications  were  addressed  by  the
Secretary of the Legislative Assembly on  8.12.2015,  depicting  details  of
the resolutions for the removal of the Speaker and the Deputy Speaker,  even
though addressed on the same day, were different.  Having perused the  same,
we hereby affirm the assertion.  It was also pointed out, that the  seal  of
the receipt affixed by the Governor’s Secretariat, on the two  letters  were
markedly different, inasmuch as, the seal of the Governor’s  Secretariat  on
the  letter  bearing  no.LA/LEG-24/2015  (pertaining  to   the   notice   of
resolution for the removal of the Deputy Speaker) was  of  long  and  almost
twice the size  of  the  seal  on  the  letter  bearing  no.  LA/LEG-26/2015
(pertaining to the notice of resolution for the  removal  of  the  Speaker),
which was circular.  The former letter merely recorded in writing  the  date
8.12.2015 on the  receipt,  whereas  the  latter  bears  a  printed  receipt
number, as also, a printed date of receipt, which we were informed,  is  the
usual practice adopted in the Secretariat of the Governor.
67.   To contest the above accusation, it was submitted  on  behalf  of  the
appellants, that no receipt number was depicted even in  the  former  letter
bearing  no.  LA/LEG-24/2015,  dated  8.12.2015,   which   the   respondents
acknowledge as genuine.  The respondents  therefore  placed  reliance  on  a
third communication, which was  also  addressed  by  the  Secretary  of  the
Legislative Assembly, to the Commissioner to the Governor,  on  the  subject
of preponement of the 6th Legislative Assembly.  The instant  communication,
bearing endorsement number LA/LEG-23/2015, is extracted below:
“To,
      The Commissioner,
to the Governor,
      Arunachal Pradesh,
Itanagar.
Sub:  Preponing of Sixth Legislative Assembly.
Sir,
      Please refer Deputy Secretary’s letter NO.GS/1-11/00 (Vol.  -  II/6778
dated 10.12.2015 forwarding (i) Order modifying summons dated 3rd  November,
2015 under 174(1) of the Constitution  of  India;  and  (ii)  Message  under
article 175 (2) of the Constitution of India.
      This office  had  issued  summons  for  the  Sixth  Session  of  Sixth
Legislative  Assembly  conveying  the  order   dated   03.11.2015   of   His
Excellency.  Accordingly, this office has swung in to action  and  initiated
all necessary steps  for  conducting  the  Session  with  effect  from  14th
January, 2015.  In the meantime we have received  a  communication  referred
above from  the  Deputy  Secretary,  Governor’s  Secretariat  preponing  the
assembly session and fixing the agenda for the Session.
      I am to state that as per normal practice  and  procedure  the  notice
for summoning of the Assembly Session should reach the Legislative  Assembly
Secretariat through the Department of Parliamentary  Affairs  Department  of
the State Govt.  Secondly, under  article  174  there  is  no  provision  to
prepone or postpone Assembly Session without consulting  the  Govt./Speaker.
Article 175 clearly  relates  that  His  Excellency  can  address  and  send
messages to when the House in Session.
      It may be mentioned here that as per rules and procedure of  Arunachal
Pradesh Legislative Assembly agenda for any  session  is  finalized  by  the
Business Advisory Committee as per order of precedence in the Rules.
      However, Legislative Assembly Secretariat has obtained  legal  opinion
and advice from the Learned Advocate General of Arunachal Pradesh  which  is
enclose herewith for your perusal and guidance.

|Recd at                    |[pic]                                 |
|3 pm. Please               |                                      |
|put up on file             |                                      |
|expeditiously. – US (NN) to|                                      |
|                           |                                      |
|receive a copy             |                                      |
|signed                     |                                      |
|14/12                      |                                      |


US (NN)
D.S.
      State Cabinet in its meeting held today at 1000 hrs has also  conveyed
its resolution which is reproduced below for  your  perusal  “We  have  also
received the opinion of the Ld. Advocate General  dated  12.12.2015  on  the
said Order and Message.  The Cabinet has per used the said  opinion  and  is
in complete agreement with views the Ld. Advocate General.
The said order dated 09.12.2015 issued by His  Excellency  the  Governor  of
Arunachal Pradesh is in contradiction to Article 174 read with  Article  163
of the Constitution of India and Rule  3  of  the  Rules  of  Procedure  and
Conduct of Business  (“Rules”).   Similarly,  the  message  is  contrary  to
Article 175 of the Constitution read with Rule 245 of the Rules.
We, therefore advice the Hon’ble Speaker not to take any action on the  said
Order and Message.  The concerned officers are accordingly directed to  take
necessary action.”
      In view of above, we have no other alternative but  to  stick  to  the
earlier order of His Excellency to convene the Sixth Assembly  Session  with
effect from 14th to 18th January, 2015 excluding the holidays.
                                        Yours faithfully,
                                             signed (illegible)
              (M. Lasa)
     Secretary,
   Arunachal Pradesh, Legislative Assembly”

68.   It was submitted on behalf of the respondents, that the  seal  on  the
receipt of the instant  communication  in  the  Governor’s  Secretariat,  is
identical to the receipt of the notice of resolution for the removal of  the
Speaker.   This  communication,  according  to  learned  counsel   for   the
respondents, was a genuine communication, which was  duly  received  at  the
Governor’s Secretariat.  The reliance on  the  instant  communication  dated
14.12.2015, according to learned senior counsel, is of  utmost  significance
to determine, that fraud had been played by the appellants.  This  assertion
was sought to be demonstrated, by depicting  the  numbers  assigned  to  the
three communications of the office  of  the  Secretary  of  the  Legislative
Assembly, coupled with the date of issuance thereof.  We  may  tabulate  the
position as under:
|Sl.   |Letter Nos.          |Dated                |Receipt No. and date  |
|No.   |                     |                     |thereof at the        |
|      |                     |                     |Governor’s Secretariat|
|1.    |LA/LEG-23/2015       |14th December, 2015  |Receipt No. 6246 dated|
|      |                     |                     |14.12.2015            |
|2.    |LA/LEG-24/2015       |8th December, 2015   |Receipt No. Nil, dated|
|      |                     |                     |8.12.2015             |
|3.    |LA/Leg.26/2015       |8th December, 2015   |Receipt No.6127 dated |
|      |                     |                     |8.12.2015             |

The three letters to which our attention was drawn bore numbers 23,  24  and
26. The  first  communication  which  bears  no.  LA/LEG-23/2015  was  dated
14.12.2015.  The said communication was addressed by M. Lasa – Secretary  of
the  Legislative  Assembly,  to  Commissioner  to  the  Governor,  Arunachal
Pradesh. It pertained to the preponement of the  6th  Legislative  Assembly.
In seriatim, the second communication bearing no. LA/LEG-24/2015  was  dated
8.12.2015. The said communication was also addressed by M. Lasa –  Secretary
of the Legislative Assembly, to the Secretary to the  Governor.   The  above
noted communications pertained to the notice of resolution for  the  removal
of the Deputy Speaker. Sequentially, the  third  communication  bearing  no.
LA/LEG-26/2015  was  also  dated  8.12.2015.   The  said  communication  was
addressed by M. Lasa – Secretary of the Legislative Assembly,  to  Secretary
to the Governor.  The above noted communications pertained to the notice  of
resolution for the removal of the Speaker.  It was  pointed  out,  that  the
above two  letters  were  issued  on  the  same  letter-head(s),  and  their
receipts were  recorded  under  the  seal  of  the  Governor’s  Secretariat,
bearing not only the number of the receipt(s), but also the date(s)  of  the
receipt. Whereas, the communication pertaining to the notice  of  resolution
for the removal of the Deputy Speaker, was not only on a  different  letter-
head, but was also with a different seal, and bore no receipt  number.   But
most importantly, sequentially, the first  letter  referred  to  above,  was
dated 14.12.2015, whereas the next two communications  with  the  succeeding
reference numbers bore the date 8.12.2015.  It was  pointed  out,  that  the
letter bearing no. LA/LEG-23/2015 having  been  issued  on  14.12.2015,  the
other two letters bearing nos. LA/LEG-24/2015 and LA/LEG-26/2015  could  not
bear a date preceding 14.12.2015.
69.   We were of the view, that the factual position needed to be  verified,
as  the  inference  suggested  was  logical.   We  therefore,  required  the
officer, who was in custody of the despatch register of the  office  of  the
Secretary of the Legislative Assembly, to produce the same for our  perusal.
 Having perused the  original  record,  and  having  heard  the  explanation
tendered by the officer, all of us were  individually  satisfied,  that  the
numbers jumble suggested on behalf of the respondents,  was  not  sufficient
to lead to the suggested inference.  All that can be  stated  in  conclusion
however is, that  the  material  produced  by  the  rival  parties  for  our
consideration, with reference to the alleged resolution moved on  16.11.2015
by 16 members of the House belonging to the INC,  for  the  removal  of  the
Deputy Speaker – Tenzing Norbu Thongdok,  is  not  sufficient  to  render  a
clear determination on the matter, one way or the other.
The fourth sequence of facts:
70.   Mr. Rakesh Dwivedi,  learned  senior  counsel  entered  appearance  on
behalf of respondent nos. 2 to 15, and also, on behalf  of  respondent  nos.
31 to 37. Respondent nos. 2 to 15 are the 14 MLAs belonging to the INC,  who
were disqualified by the Speaker on 15.12.2015. Respondent nos.  31  to  37,
are 7 more MLAs also belonging to the INC.  The first set  of  14  MLAs  and
the second set of 7 MLAs referred to above, constitute the group of 21  MLAs
who had originally  been  elected  on  the  INC  ticket,  and  comprise  the
breakaway group of  dissidents,  who  desired  a  change  in  the  political
leadership in  the  Assembly.   They  had  demanded  the  removal  of  Chief
Minister –  Nabam  Tuki.   It  would  also  be  relevant  to  mention,  that
respondent nos.31 and 37 – Wanglam Sawin and Gabriel D. Wangsu, were  stated
to have tendered their resignations, which were  accepted.   Thereupon,  the
constituencies represented by them, were declared vacant.  It  may  also  be
noted, that respondent nos. 31 and 37 had assailed the acceptance  of  their
resignations before the High Court, but the challenge raised  by  them,  was
rejected by the High Court.  We are informed, that a  Petition  for  Special
Leave to Appeal filed by them before this Court, assailing the  above  order
of the High Court, has also been dismissed.
71.   The submissions advanced on behalf of the respondents, require  us  to
record another sequence of facts.  It  was  submitted  by  learned  counsel,
that the 5th session of the  Assembly  was  concluded  on  21.10.2015.   The
Governor issued an  order  on  3.11.2015  summoning  the  6th  session,  and
scheduled its commencement for 14.1.2016.  In the interregnum 13 MLAs  –  11
belonging to the BJP  and  2  Independent  MLAs,  issued  a  notice  (-dated
19.11.2015) of resolution for the removal of the Speaker – Nabam Rebia.  The
above factual position was confirmed by the  Secretary  of  the  Legislative
Assembly – M. Lasa, to  Secretary  to  the  Governor  on  8.12.2015.  Having
issued the above notice, the concerned 13 MLAs addressed  a  letter  to  the
Governor (dated, 19.11.2015) for the preponement of  the  meeting/proceeding
of the House.  The  aforesaid  communication,  which  was  received  in  the
office of the Governor on 20.11.2015, is reproduced below:
   “REQUEST TO GOVERNOR FOR PREPONING THE NEXT SESSION OF APLA TO CONSIDER
            AND VOTE ON THE RESOLUTION FOR REMOVAL OF THE SPEAKER
                                                                  Naharlagun
                                                                  19-11-2015
Honourable Governor Saheb
      We, the undersigned  members  of  the  Arunachal  Pradesh  Legislative
Assembly, 13 in number, wish to table a notice of resolution for removal  of
Shri Nabam Rebia from the Office of Speaker in exercise of our powers  under
article 179 read with article 181 of the Constitution of India further  read
with Rules 151 to 154 of the Rules of Procedure of the House.
      The notice of Resolution for removal of the Speaker, signed by all  of
us and addressed to the Secretary, Arunachal  Pradesh  Legislative  Assembly
and endorsed to the Speaker and Deputy Speaker of the Assembly is enclosed.
      As this Resolution is not a resolution under the  Rules  of  Procedure
of the House, but a resolution under article 179 read with  article  181  of
the Constitution of India, the said Resolution,  as  soon  as  it  is  given
notice  of,  requires  to  be  disposed  of  by  the  Legislative   Assembly
immediately after the completion of the mandatory time  period  of  14  days
prescribed in the Constitution.
      You are aware, sir, that generally sessions of the House are  convened
on the recommendation of the Government of the day, so that matters  related
to governance are considered by the House.  The matter relating  to  removal
of the incumbent from the Office of Speaker is not a  matter  of  governance
but limited to the confines of Legislature with which Government of the  day
is not concerned.  Since a Speaker enjoys and sustains his office  with  the
support of the ruling party which now, in the present case,  stands  reduced
to only 25, even extraordinarily also, no Government  recommendations  would
be forthcoming for a session to consider the resolution  for  removal  which
we tabled.
      You have however called the next session on the 6th Arunachal  Pradesh
Legislative Assembly to meet on 14th January, 2016 but this  Resolution  for
removal for which notice once given,  cannot  wait  for  nearly  two  months
time.  Since the Constitutional  imperative  has  to  be  complied  with,  a
session at the earliest becomes indispensable.
      We therefore beseech you sir that you may be pleased  to  rescind  the
summons issued for the House to meet on 14th January, 2016 and re-issue  the
summons for the House to meet at an emergent date  so  that  the  Resolution
aforesaid is considered and disposed at the earliest in accordance with  the
scheme, purpose and timeframe envisaged by  the  Constitution  makers.   Any
delay in this behalf would gravely  and  irreversibly  affect  the  ends  of
justice as guaranteed in the said Constitutional provisions and Rules.
      You are also aware how recent reports  in  the  newspapers  about  the
alleged moral turpitude of  the  incumbent  in  the  office  of  Speaker  as
evidenced by the criminal  complaint  of  a  women  against  him,  that  has
brought down the esteem of the office of the Speaker.  The  dignity  of  the
Speaker's office needs thus to be restored with the utmost dispatch  through
your hands of calling a session at the earliest in lieu of the session  that
has been summoned to meet on 14.1.2016.
      You also have the power to modify your  summons  by  merely  preponing
the date of the meet from 14 January 2016  to  any  date  immediately  after
completion of the 14 days period.  As  all  notices  given  after  issue  of
summons are valid, you may be pleased to  prepone  the  session  to  a  date
immediately after 14 days of the  date  of  notice  of  our  resolution  for
removal of the Speaker.
      We pray your honour accordingly with the  hope  that  you  would  save
democracy from peril at the hands of the Speaker.
                                                                        sd/-
                                                               (TAMIYO TAGA)
                                                        LEADER OF OPPOSITION
                                                                 (JAPU DERU)
                                                                        MLA”

A perusal of the aforesaid communication  reveals,  that  the  concerned  13
MLAs had sought the removal of the Speaker – Nabam Rebia under Articles  179
and 181.  It was also pointed out, that in consonance with the procedure  of
the House, such a resolution was required to be considered and disposed  of,
by the Assembly immediately after the minimum mandatory period of  14  days.
It was also urged, that the ruling political party – the INC, was no  longer
enjoying majority in the House, as its strength stood  reduced  to  only  25
out of a total of 60 members.  It was in this background, that a prayer  was
made by the  concerned  13  legislators  to  the  Governor,  to  cancel  the
summoning of the 6th session of the  Assembly  for  14.1.2016,  and  to  re-
summon the House at the earliest, so that the resolution  could  be  settled
without any delay.  It was submitted, that  the  13  MLAs  had  advised  the
Governor, that he had the power to modify the earlier summons,  and  prepone
the date of summoning of the Assembly.
72.   It is also relevant to mention, that on  27.11.2015  the  Commissioner
to  the  Governor,  addressed  a  letter  to  the  Secretary  of  the  State
Legislative Assembly, that the Governor  was  in  receipt  of  a  resolution
signed by 13 members of the House, seeking the removal  of  the  Speaker  of
the Assembly.  On behalf  of  the  Governor,  the  Commissioner  sought  the
following information through the aforesaid communication:
“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.
Kindly ensure that replies to above points are sent at the earliest.”

73.   Even though the aforesaid information was sought  expeditiously,  when
no such information was furnished by the Secretary of the State  Legislative
Assembly, the Deputy Secretary to the  Governor,  addressed  another  letter
dated 3.12.2015 to the above Secretary, seeking the same information  again.
 The aforesaid communication also remained unanswered.  Whereupon,  a  third
communication  dated  7.12.2015  was  addressed  to  the  Secretary  of  the
Legislative Assembly for the same purpose.  An extract of the  letter  dated
7.12.2015 is reproduced hereunder:
“To,
      The Secretary,
      Arunachal Pradesh Legislative Assembly,
      Arunachal Pradesh,
      Naharlagun.
Sub: Notice of Resolution for removal of Speaker.
Sir,
      I am directed to refer to our letter of even number  dated  27.11.2015
and 03.12.2015 on the above subject  wherein  you  have  been  requested  to
furnish the following information to this office for  kind  perusal  of  His
Excellency the Governor.
1. Date of receipt of the  notice  of  the  resolution  in  the  Legislative
Assembly.
2. Action taken by the Legislative Assembly on the notice.
3. Highlight of the precedents, if any.
Required information have not been received from your end till date.
Kindly ensure that replies of above points are sent latest by 8th  December,
2015.”

74.   In the sequence of events, noticed above,  it  is  also  pertinent  to
mention, that the Chief Whip of the INC – Rajesh Tacho, filed a petition  on
7.12.2015 seeking disqualification of 14 members of  the  House  (respondent
nos. 2 to 15),  belonging  to  the  INC,  under  Article  191(2)  read  with
paragraphs 2(1)(a), 6(1) and (2) of the  Tenth  Schedule,  read  with  Rules
3(7) and 6 of the Members of  the  Arunachal  Pradesh  Legislative  Assembly
(Disqualification on Ground of Defection) Rules, 1987.
75.   It was also  pointed  out,  that  the  Secretary  of  the  Legislative
Assembly, through a communication dated  8.12.2015,  informed  the  Governor
that a notice of resolution for the removal of the Speaker  –  Nabam  Rebia,
had been received in his office on 19.11.2015.    It was  the  case  of  the
respondents, that on confirmation of the fact that  13  MLAs  had  issued  a
notice of resolution for the removal  of  the  Speaker  on  19.11.2015,  the
Governor  sought  legal  opinion,  with  reference  to  the  proceedings  of
disqualification initiated by the Chief Whip of the  INC,  and  also,  about
the validity and legitimacy of the Speaker  sitting  in  judgment  over  the
adjudication of the disqualification proceedings under the  Tenth  Schedule,
during the pendency of the notice of resolution for his own removal.   Based
on the advice tendered to him, the Governor entertained an impression,  that
there was an attempt to subvert the provisions  of  the  Constitution.   The
Governor therefore, it was urged, exercised his power under  Article  174(1)
suo motu, without any aid and advice, and rescheduled  the  6th  session  of
the House by preponing it from 14.1.2016 to 16.12.2015.
The first installment of legal submissions, on behalf of the respondents:


76.   Based on the factual premise recorded above, it was the contention  of
Mr. Vikas Singh, and also, Mr. Shekhar Naphade,  learned  Senior  Advocates,
that the actions of high constitutional  functionaries  referred  to  above,
were a clear testimony of the fact,  that  the  democratic  process  in  the
State of Arunachal Pradesh, was being subverted and  undermined.   As  such,
it became the constitutional obligation of the Governor, to ensure that  the
constitutional functioning was restored, as would  re-establish  the  purity
of the democratic process.  Additionally, it was the submission  of  learned
counsel, that the action taken in this case, was akin to the one  where  the
Governor requires the ruling  party  (or  combination)  to  demonstrate  its
majority/strength, on the floor of the House.  The  instant  action  of  the
Governor, according to learned counsel, originated from the same  logic  and
rationale, and therefore,  could  not  have  been  dealt  with  differently.
Accordingly it was urged, that this Court should not  find  fault  with  the
legality or constitutionality of the action of the Governor, and also,  with
the Governor’s bona fides, in having  issued  the  order,  and  the  message
dated 9.12.2015.

77.   It was the contention of Mr. Rakesh Dwivedi, learned Senior  Advocate,
that the House could have been summoned for any day after  3.12.2015.   This
because, the minimum notice period of 14 days  mandated  through  the  first
proviso under Article 179, expired on 3.12.2015.  And yet, the Governor  did
not feel the urgency of summoning the House by preponing the meeting of  the
House.  It was submitted, that the sense  of  urgency  and  compulsion,  for
convening the House assumed a different complexion when the  Chief  Whip  of
the INC – Rajesh  Tacho,  filed  a  petition  for  the  disqualification  of
respondent nos. 2 to 15, on 7.12.2015.  It was therefore, and in  the  above
background, the urgency of the cause assumed significance.   In  conjunction
with  the  above,  the  fact  that  the  office  of  the  Secretary  of  the
Legislative Assembly confirmed on 8.12.2015, that he was in receipt  of  the
notice of resolution for the removal of the Speaker  –  Nabam  Rebia,  dated
19.11.2015, revealed that a political dimension  was  being  created,  which
was clearly undemocratic.  The Governor, according to learned  counsel,  was
well within his rights, in the above background, to take such action  as  he
in his discretion considered appropriate, to re-establish the purity of  the
democratic process.  By the order dated  9.12.2015,  the  Governor  preponed
the meeting of the 6th session of  the  Assembly  originally  scheduled  for
14.1.2016, to 16.12.2015.  For taking his order to its  logical  conclusion,
according to  learned  counsel,  the  Governor  through  his  message  dated
9.12.2015, regulated the procedure of the House, as  would  not  subvert  or
undermine the democratic process.
The fifth sequence of facts:

78.   It was urged on behalf of the respondents, that the  challenge  raised
by the appellants, to the order of the Governor dated  9.12.2015  (preponing
the summoning of the House from  14.1.2016  to  16.12.2015),  and  to  other
connected issues, before the High Court by filing Writ  Petition  nos.  7745
of 2015 and 7998 of 2015 (on 17.12.2015 and 22.12.2015,  respectively),  was
not  only  unfair  and  unreasonable,  but  was   also   illegitimate,   and
constituted a misuse of the jurisdiction of the  High  Court.   It  was  the
contention of learned senior  counsel,  that  the  office  of  the  Governor
received a letter dated 14.12.2015, from  the  Speaker  of  the  Assembly  –
Nabam Rebia, recording his objection to the  order  of  the  Governor  dated
9.12.2015  preponing  the  summoning  of  the  House   from   14.1.2016   to
16.12.2015.   In  his  above  letter  dated  14.12.2015,  the  Speaker  also
contested the validity of  the  message  of  the  Governor  dated  9.12.2015
(providing the manner in which,  proceedings  of  the  6th  session  of  the
Assembly should be conducted).
79.   On the same day, i.e., 14.12.2015, the Commissioner  to  the  Governor
received a letter from the Officer on Special Duty to  the  Chief  Minister,
seeking a meeting of the Chief Minister and his Council  of  Ministers,  and
some other MLAs, with the Governor.  The said letter  was  received  by  the
Commissioner at 10.15 p.m. on 14.12.2015, and was endorsed  to  the  SSP/ADC
to the Governor, on 15.12.2015 at 7.45 a.m.  It was also pointed  out,  that
the aforesaid communication was brought to the notice of the Governor at  10
a.m. on 15.12.2015.  Having accepted the  aforesaid  request,  the  Governor
granted audience to the  Council  of  Ministers  at  6  p.m.  on  15.12.2015
itself.  It was submitted, that 9 Ministers  including  the  Chief  Minister
came to meet the Governor at 6.15 p.m. on 15.12.2015, and committed acts  of
serious misbehaviour.  Insofar as the details of their alleged  misdemeanour
are concerned, the same were disclosed by the Governor, to  the  High  Court
in IA No.29 of 2016, in the following words:
“….. that 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 Shri. 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.”

 It was  also  submitted,  that  a  meeting  of  the  Cabinet  was  held  on
14.12.2015, with reference to the preponement of the Assembly  Session  from
14.1.2016  to  16.12.2015,  whereupon  the  Cabinet  passed  the   following
resolution:
“MINUTES OF THE MEETING OF THE CABINET HELD ON 14TH DECEMBER, 2015  AT  1000
HRS IN THE CONFERENCE HALL  OF  THE  HON’BLE  CHIEF  MINISTER’S  RESIDENTIAL
OFFICE, ARUNACHAL PRADESH, ITANAGAR
MEMBERS OF THE COUNCIL OF MINISTERS PRESENT:-
Shri Nabam Tuki, Chief Minister (In Chair)
Shri Tanga Byaling, Minister (Home, etc.)
Shri Tapang Taloh, Minister (Education, etc.)
Shri Gojen Gadi, Minister (PWD, etc.)
Shri Takam Pario, Minister (PHED&WS, etc.)
Shri Rajesh Tacho, Minister (Health & PW, etc.)
Shri Phurpa Tsering, Minister (AH&V, etc.)
Shri Jomde Kena, Minister (Transport, etc.)
Shri Tirong Aboh, Minister (DoTCL, etc.)
IN ATTENDANCE
Shri Ramesh Negi, Chief Secretary and Cabinet Secretary
Shri Tajom Taloh, Commissioner & Jt. Secretary to the Cabinet
Shri Onit Panyang, Secretary (Law & Parliamentary Affairs)
            The Cabinet Secretary welcomed the Hon’ble  Chief  Minister  and
his Council of Ministers.
AGENDA ITEM NO.1. DISCUSSION ON THE MESSAGE DATED 9TH DECEMBER, 2015 OF  THE
GOVERNOR OF ARUNACHAL PRADESH FOR PRE-PONEMENT OF THE ASSEMBLY SESSION  FROM
14TH JANUARY 2016 TO 16TH DECEMBER, 2015.
            The Cabinet has discussed the opinion rendered  by  the  Learned
Advocate General dated 12.12.2015 on the constitutionality of the order  and
message of HE, the Governor.  After careful  examination,  the  Cabinet  has
resolved as under:
            The State Cabinet at its meeting held on 14th December, 2015  at
1000 hrs in CM’s conference hall again discussed in  detail  the  Order  and
the Message dated 09.12.2015 of His  Excellency  the  Governor  of  Arunahal
Pradesh.
            Cabinet has received the opinion of  the  Ld.  Advocate  General
dated 12.12.2015 and other legal experts on  the  said  Order  and  Message.
The Cabinet has perused the said opinion and is in complete  agreement  with
views of the Ld. Advocate General.
            The said Order dated 09.12.2015 issued  by  His  Excellency  the
Governor of Arunachal Pradesh is in contradiction to Article 174  read  with
Article 163 of the Constitution of India and Rules 3 and 3A of the Rules  of
Procedure and Conduct of  Business  of  the  Arunachal  Pradesh  Legislative
Assembly.  Similarly,  the  Message  is  contrary  to  Article  175  of  the
Constitution read with Rule 245 of the said Rules.   Moreover,  the  Hon’ble
High Court of Gauhati has fixed the hearing of the case of resignation of  2
MLAs from the Assembly on 16th December, 2015.
            Therefore, the Cabinet resolves …, His Excellency, the  Governor
of Arunachal Pradesh to recall and cancel the Order and  the  Message  dated
9th December, 2015 and allow the Session to be  convened  on  14th  January,
2016 as already ordered and scheduled.
            The Cabinet also  resolves  to  endorse  a  copy  each  of  this
resolution and legal advice of the  Ld.  Advocate  General  to  the  Hon’ble
Speaker.
                                                    ... Secretary (Cabinet)”

80.   It was reiterated during the course of hearing, that  the  meeting  of
the Governor with the Chief Minister and Ministers on  15.12.2015  was  duly
video-graphed.  It was urged, that the entire episode as  it  had  occurred,
can be shown to this Court.  The fact that an attempt was made by the  Chief
Minister – Nabam Tuki and his Ministers, to assault the Governor,  in  order
to  force  him  to  withdraw  the  order/message  dated  9.12.2015,  it  was
submitted, was duly brought  to  the  notice  of  the  Director  General  of
Police, by the Commissioner to the Governor.
81.   Insofar as the request which the Chief  Minister  and  some  Ministers
had made, in their letter dated 14.12.2015 is concerned, it  was  submitted,
that the same was an absolute eyewash, because  members  of  the  INC  still
supporting the Chief Minister, had already taken a  decision  not  to  allow
the House to meet, as required by the Governor’s order dated 9.12.2015.   In
order to substantiate this assertion, learned counsel placed reliance  on  a
letter dated 14.12.2015 addressed by the then Speaker – Nabam Rebia, to  the
Minister (Home) – Tanga Byaling.   The  aforesaid  letter,  which  has  been
extracted in the impugned order passed by  the  High  Court,  is  reproduced
below:
“Arunachal Pradesh Legislative Assembly
Speaker’s Cell
MOST URGENT
      As the Govt. is aware of  the  fact  that  a  serious  law  and  order
problem is likely to take place on 16th of December, 2015, in  view  of  the
unconstitutional and unprecedented summoning of the Sixth Session  of  Sixty
Legislative assembly of Arunachal  Pradesh  by  the  Governor  of  Arunachal
Pradesh.  It is given to learn that thousand  of  anti-social  elements  are
taking shelter in the state Capital with the motive to create law and  order
problem on that particular date.   Illegal  arms  and  ammunition  are  also
reported to have been collected for  the  purpose.   Sources  have  revealed
that the main target of the anti—social elements would be to burn  down  the
legislative building of the state Assembly at Naharlagun.
      I would  therefore  request  the  Hon’ble  Minister  (Home)  Govt.  of
Arunachal Pradesh to provide full-proof security in and around the  Assembly
building w.e.f. 15th – 18th December, 2015 on top-most priority  basis.   It
is also requested that no individual including the  Hon’ble  Legislators  be
allowed to enter the Assembly building premises  on  15th,  16th,  17th  and
18th Dec’ 15.
Please treat this as most urgent.
Urgent                                                   Sd/-
Illegible                                          14.12.15
SP/City                                            (NABAM REBIA)
Deploy sufficient force                                       Speaker
with monitoring system
with the administration
of IRBN + CPMF”

A perusal of the aforesaid communication reveals,  that  the  Speaker  asked
the Home Minister to provide foolproof security and to protect the  building
of the State Legislative Assembly.  And that,  no  one,  not  even  MLAs  be
permitted  to  enter   the   building   from   15.12.2015   to   18.12.2015.
Accordingly, the Superintendent of Police (City),  Itanagar,  in  compliance
with the directions issued by the Director  General  of  Police,  sufficient
number of IRBN personnel were deployed,  to  secure  the  Assembly  building
premises from 15.12.2015 to 18.12.2015,  so  that  no  individual  including
legislators, could enter the same.  It was pointed  out,  that  the  Speaker
himself (whose continuation in the State  Legislative  Assembly  was  to  be
voted upon, on 16.12.2015), being aware of his position, was making all  out
efforts, to circumvent the holding of the said meeting.
82.   In addition to the letter  of the  Speaker,  referred  to  above,  the
Speaker also addressed a letter  on  the  same  day  –  14.12.2015,  to  the
Governor, wherein he contested the decision of the Governor, to  summon  the
House by preponing the summoning date from 14.1.2016 to 16.12.2015.  In  the
above letter of the Speaker – Nabam  Rebia  it  was  highlighted,  that  the
provisions of the Constitution, did not authorize the Governor, to  exercise
his powers at his own free will.  It was asserted, that all  the  powers  of
the Governor were to be exercised on the aid and advice of  the  Council  of
Ministers.  For this, the Speaker had invited the  Governor’s  attention  to
Article 163(1).  It was also  pointed  out,  that  there  was  no  provision
either under the Constitution or the  ‘Conduct  of  Business  Rules’,  which
empowered the Governor to summon a meeting of the House,  by  preponing  the
date already fixed, in consultation with the Chief Minister and his  Council
of Ministers.  In this  behalf,  reliance  was  placed  on  Rule  3  of  the
‘Conduct of Business Rules’.  It was  pointed  out,  that  the  ‘Conduct  of
Business Rules’ had been framed under Article 208,  and  were  binding,  not
only on the MLAs, but also on the Governor.  The  Governor  was  accordingly
urged by the Speaker, not to press  for  the  implementation  of  the  order
passed by him summoning the  House  for  16.12.2015,  “in  the  interest  of
upholding the high moral principles enshrined in the Constitution”.  It  was
also pointed out, that  while  preponing  the  session  of  the  House,  the
secretariat of the Legislative Assembly had  not  been  afforded  sufficient
time, to make necessary arrangements,  for  holding  the  preponed  session.
With respect to the order/message issued by the Governor, it  was  asserted,
that  the  same  was  unconstitutional,  and  that,  it  impinged  upon  the
functions of the “Business Advisory Committee”, constituted under  Rule  244
of the ‘Conduct of Business Rules’.   It  was  urged,  that  the  Governor’s
attention was invited  to  the  fact,  that  it  was  the  function  of  the
“Business Advisory Committee” alone, to schedule the business of the  House,
and that, it was not within the  realm  of  the  Governor  to  require,  the
notice of resolution for the removal of the Speaker, to be taken up  as  the
first item, on the agenda for the day.   The  Speaker  –  Nabam  Rebia  also
invited the attention of  the  Governor  to  the  resolution  of  the  State
Cabinet, in the meeting held on 14.12.2015. It was submitted, that  for  all
the above reasons, the Governor was requested to  refrain  from  interfering
with the functioning  of  the  Legislative  Assembly.  Based  on  the  above
communications,  it  was  submitted,  that  the  Speaker   was   bent   upon
frustrating, any final consideration on the notice  of  resolution  for  his
removal.
A further instalment of legal submissions, on behalf of the respondents:
83.   It was submitted by Mr. Rakesh Dwivedi, learned senior  counsel,  that
the appellants were fully justified in their reference to Article 154  which
deals with the “executive power” of the State, and  which  also  explicates,
that the same is vested with the Governor.  He also acknowledged,  that  the
above “executive power” can be exercised by  the  Governor,  in  the  manner
expressed in Article 163  –  on  the  aid  and  advice  of  the  Council  of
Ministers with the Chief Minister as the head.  It  was  however  submitted,
that the exercise of functions by the Governor at  his  own  discretion,  is
recognized in  Article  163(2)  itself,  which  contemplates  constitutional
decision making “in his discretion” without any aid and advice.
84.   It was urged, that insofar as the present controversy is concerned,  a
correct understanding of Article  163(2)  would  be  of  extreme  relevance.
Under Article 163(2), according to learned counsel,  the  Governor  has  the
authority to act on his own, in respect of matters  where  the  Governor  is
mandated to act in his own discretion “by or under”  the  Constitution.   It
was further submitted that when  a  question  arises,  as  to  whether  such
discretion is vested with the Governor “by or under” the  Constitution,  the
decision of the Governor, on the above question, is final and  binding.   It
was submitted, that Article 163(2) postulates three situations where, as  an
exception to the general rule, the Governor can act  at  his  own  will  and
discretion.  Firstly, when he is required to discharge his functions by  the
mandate  of  some  provision  of  the  Constitution  itself,  in   his   own
discretion.  Secondly, when the Governor is assigned functions on the  basis
of  enactments  made  under  the  Constitution,  where  he  is  mandated  to
discharge his functions by exercising  his  own  discretion.   And  thirdly,
where he is impliedly required to act in his own discretion.
85.   It was pointedly contended,  that  in  the  present  controversy,  the
question that needs to be determined is, whether  Article  174  which  vests
the Governor with the authority to summon the Assembly,  can  be  envisioned
as one of the provisions, which requires the Governor to  impliedly  act  at
his own discretion?  Learned counsel  acknowledged,  that  the  exercise  of
discretion by the Governor in the present  case  did  not  fall  within  the
first two categorizations, postulated in his  submission.   Insofar  as  the
implied power of the Governor with reference to the summoning of  the  House
(vide  order  dated  9.12.2015)  is  concerned,  the  first   and   foremost
submission canvassed was, that  a  clear  distinction  needed  to  be  drawn
between Article 174(1), which postulates the authority to summon the  House,
and Article 174(2) which vests the authority to  prorogue  or  dissolve  the
Assembly.  In dealing with the distinction between the two, it  was  pointed
out, that the process of summoning a House can never  be  considered  to  be
anti-democratic.   Summoning  the  House,  according  to  learned   counsel,
inevitably  supports  the  cause  of  the  democratic  process.   The  same,
according to learned counsel, may not be true with reference  to  proroguing
or dissolving the House.  When  a  House  is  prorogued  or  dissolved,  the
democratic process is sought to be deferred for the time being, or till  the
re-election of the members of the Legislative Assembly, respectively.
86.   Learned senior counsel also pointedly  focused  on  Article  179,  and
more particularly, sub-article (c)  thereof.   It  was  submitted,  that  an
incumbent Speaker (or Deputy Speaker) can be removed under  sub-article  (c)
of Article 179, by a resolution of the Assembly passed by a majority  of  “…
all the then members …” of the Assembly. It was submitted,  that  the  issue
of removal of the existing Speaker (or Deputy  Speaker)  contemplated  under
Article 179, should not be confused with the exercise of  “executive  power”
of the State.  It was asserted, that the functions of an Assembly  could  be
placed  in  two  entirely  separate   categories.    Firstly,   its   purely
legislative activities. Legislative activity, according to learned  counsel,
included  the  responsibility  of  the  “executive  power  of   the   State”
represented through the Chief Minister and  his  Council  of  Ministers,  to
determine the field and nature of legislation,  to  be  brought  before  the
House for legislation.  It was submitted,  that  in  the  discharge  of  the
aforesaid activity, the Governor can have no role whatsoever.  The realm  of
legislative activity,  according  to  learned  counsel,  also  included  the
actual consideration of a Bill.  Herein again, it was  submitted,  that  the
Governor would have  no  role,  except  to  the  extent  contemplated  under
Article 200, wherein, when a Bill is passed by the House, the  same  has  to
be approved by the Governor. And only when the Governor gives his assent  to
the Bill, the same assumes the status of a legislative  enactment.   It  was
pointed out, that Article 200 contemplates a situation, where  the  Governor
can return the Bill with a message, requiring the House  to  reconsider  the
same, by examining the suggestions  made  by  the  Governor.   This  limited
responsibility cast on the Governor,  it  was  contended,  fell  within  the
legislative process.  The  Governor  before  whom  a  Bill  (passed  by  the
Legislative Assembly) is placed, has also the right  to  reserve  the  Bill,
for the consideration of  the  President.   This  action  of  the  Governor,
according to learned counsel, must be accepted as a  further  responsibility
of the Governor within the legislative process.  It was submitted,  that  in
all the functions vested with the Governor under  Article  200,  are  to  be
discharged by the Governor, in his independent discretion, and  not  on  any
guidance or advice.  This, according to  learned  counsel,  illustrates  the
third  category  of  the  Governor’s  functions,  wherein  the  Governor  is
impliedly required to act in his own  discretion,  even  though  he  is  not
expressly so required, by any written mandate emerging from Article 200.
87.   Secondly, it was submitted, that there are  functions  and  activities
of  the  House,  which  are  separate  and  distinct  from  its  legislative
functioning.  The said activities may have no role, of  the  Chief  Minister
or his Council of Ministers.  Illustratively, it  was  contended,  that  the
issue of removal of a Speaker (or Deputy Speaker) under  Article  179(c)  is
an exclusive function of the House, but is independent  of  its  legislative
business.  Insofar as the issue of removal of the  Speaker  (or  the  Deputy
Speaker) is concerned, it was acknowledged, that neither the Chief  Minister
nor his Council of Ministers has any determinative role in the matter.   The
Speaker (or the Deputy Speaker) can be removed from his office, only  “…  by
a resolution of the Assembly passed by a majority of all  the  then  members
of the Assembly.”.  Insofar as the present controversy is concerned, it  was
pointed out, that the notice of resolution for the removal of  the  Speaker,
dated 19.11.2015, was brought by 13 members  of  the  House.   According  to
learned counsel, it is necessary to understand,  the  aforesaid  submission,
in the  background  of  the  position  occupied  by  the  Speaker.   It  was
emphasized, that  a  Speaker  is  a  neutral  arbiter,  between  the  ruling
Government (which has the majority in  the  Assembly),  and  the  opposition
parties (which constitute the minority).
88.   In continuation, learned senior  counsel,  invited  our  attention  to
Article 180.  It was pointed out, that  sub-article  (1)  thereof  provides,
that if the office of the Speaker is vacant, the duties of “the  office”  of
Speaker, are to be performed by the Deputy Speaker. And  if  the  office  of
the Deputy Speaker is also vacant, the duties of “the  office”  of  Speaker,
are to be performed by a person  appointed  by  the  Governor,  out  of  the
existing MLAs.  It was highlighted, that in the above  exigency,  where  the
question of discharging duties of the Speaker arises, the Governor has  been
expressly vested with a constitutional responsibility.  Based on  the  above
analysis, it was submitted, that insofar as the  non-legislative  duties  of
the Assembly are  concerned,  the  Governor  has  also  been  ascribed  some
specific responsibilities.  And since the Chief Minister and the Council  of
Ministers have no role in  the  aforestated  action/activity,  the  Governor
need not make the choice of the person, to discharge the duties of  Speaker,
on the basis of any aid and advice of the Chef Minister and his  Council  of
Ministers.
89.   It was asserted, that the position prevailing after the conclusion  of
the  5th  session  of  the  Assembly  on  21.10.2015,   did   occasion   the
applicability of sub-article (2) of Article 180, in the  peculiar  facts  of
this case.  As such, it was urged, that it  would  be  wholly  incorrect  to
assume, that the action taken by the Governor with reference to  the  office
of Speaker was extraneous, specially when considered with reference  to  the
relevant provisions of the Constitution.
90.   Learned senior counsel seriously questioned the action of the  Speaker
in locking the premises of the Assembly, and thereby,  consciously  stalling
the democratic process of the House.  It was asserted, that if  the  Speaker
was desirous of enforcing the order of  disqualification  (of  14  MLAs)  by
himself, under the Tenth Schedule, he may well have prevented the  entry  of
the said 14 disqualified members into the premises  of  the  House.  It  was
submitted, that the action of the Speaker in disallowing  the  consideration
of the notice of resolution for his removal, by preventing entry of all  the
legislators, into the building of the House, was really an action  aimed  at
frustrating the democratic process.  And, an escape route with reference  to
the notice of resolution for his own removal.  It was pointed out, that  the
Speaker  being  an  elected  member  of  the  Assembly,   discharges   vital
legislative and non-legislative functions.   His  non-legislative  functions
include the duties as head of  the  Secretariat  of  the  Assembly,  and  in
addition thereto, his quasi-judicial functions are  those  postulated  under
the “Tenth Schedule”, of the Constitution.  The  legislative  functions,  as
well as, the duties vested with the Speaker under the Tenth  Schedule,  have
a direct nexus to the democratic process, and as such, the discharge of  the
above responsibilities, while his position as a Speaker  of  the  House  was
under challenge, constituted a serious constitutional impropriety.
91.   On the duties assigned to the  Governor  under  Article  174,  it  was
submitted, that it was improper and unjustified to describe  the  action  of
the Governor in summoning the House vide order  dated  9.12.2015,  as  anti-
democratic. According to learned counsel, only anti-democratic forces  would
contest a decision  of  the  Governor,  in  summoning  the  House.   It  was
asserted, that a Government which is confident of its majority on the  floor
of the House, would have nothing to fear, when the House is  summoned.   The
summoning of the House by the Governor, at  his  own  discretion,  would  be
inconsequential  where  the  Government  can  establish  its  numbers.   For
exactly the same reason, it was submitted, that the action of  the  Governor
in summoning the House, for the consideration of a notice of resolution  for
the removal of the Speaker would be inconsequential, if the Speaker  enjoyed
the support of the majority of the members of the  House.   It  was  pointed
out, that the action  of  shying  away  and  stalling  consideration,  of  a
resolution for the removal of the Speaker,  is  an  action  which  could  be
justifiably described as anti-democratic.  It was submitted,  that  a  party
in power which claims to enjoy  the  majority,  cannot  be  aggrieved  in  a
situation where the  Governor  requires  the  Government  to  establish  its
majority, through  a  floor  test.   Likewise,  a  Speaker  who  enjoys  the
confidence of the House, cannot be an aggrieved  party,  when  the  Governor
calls for the consideration of a notice of resolution for his removal.
92.   Referring to the action of the Governor,  based  on  the  order  dated
9.12.2015, it was submitted, that even  in  the  worst  case  scenario,  the
action of the Governor could not be described,  as  an  action  in  conflict
with  any  provision  of  the  Constitution,  or   even   a   constitutional
norm/propriety.  It was submitted, that the notice  of  resolution  for  the
removal of the Speaker was submitted on 19.11.2015. The  Governor  had  made
repeated efforts in writing, to confirm, whether such a notice had  actually
been submitted to the Secretary of  the  Legislative  Assembly.   Initiating
action for summoning the House, by ordering its  preponement,  according  to
learned senior counsel, could be an option only if, the  concerned  13  MLAs
had actually submitted the above notice dated 19.11.2015, to  the  Secretary
of the Legislative  Assembly.   Merely  because  a  copy  thereof  had  been
furnished to the Governor, he could  not  have  initiated  any  action.   In
spite  of  the  high  office  of  the   Governor,   and   despite   repeated
communications were sent by the  Governor,  seeking  information  about  the
factual position, whether a notice of resolution  for  the  removal  of  the
Speaker – Nabam Rebia had  been  received,  the  same  remained  unanswered.
Finally, the factual position came to the notice of the  Governor,  only  on
8.12.2015, on the receipt of a  communication  from  the  Secretary  of  the
Legislative Assembly.  By this time the postulated 14 days’  notice  period,
before such notice could be taken up  for  consideration,  had  expired  (on
3.12.2015).  Allowing the Speaker to discharge functions pertaining  to  the
Secretariat  of  the  Assembly,  or  under  the  Tenth   Schedule   to   the
Constitution, while his own position was under challenge, would not only  be
unconstitutional, but also undemocratic.  It was urged, that it was  in  the
aforesaid background, and based on the aforesaid understanding, and also  to
ensure that the functioning of the House was carried out in consonance  with
established democratic norms, that the Governor (in exercise of  the  powers
vested with him under Article 174), had ordered the summoning of  the  House
for 16.12.2015 (by preponing  the  6th  session  of  the  Assembly,  earlier
scheduled for 14.1.2016).  It was therefore contended, that the  submissions
advanced at the behest of learned counsel for the  appellants,  deserved  to
be rejected.
93.   Mr. Rakesh Dwivedi,  learned  senior  counsel,  having  concluded  his
submissions with reference to the order of  the  Governor  dated  9.12.2015,
similarly  endeavoured  to  justify  the  message  of  the  Governor   dated
9.12.2015.   His submissions to support the message  dated  9.12.2015,  were
the same as in support  of  the  order  of  the  Governor  dated  9.12.2015.
According to learned counsel, the message was clear, that the  Governor  had
authorised the House, to permit the resolution for removal  of  the  Speaker
to be moved.  The message required the members of the Assembly,  to  discuss
and put the same to vote, as “… the first item on the agenda  of  the  House
at the first sitting of the Sixth Session…”.   The  Governor  also  required
the Deputy Speaker, to hold the proceedings peacefully  and  truthfully,  so
as to ensure that they were conducted fairly.  The message of the  Governor,
required the proceedings to be video-graphed.  It was  submitted,  that  the
message of the Governor, would  not  only  secure  the  enforcement  of  the
democratic process, but would also ensure transparency and fairness. It  was
therefore the assertion of learned senior counsel, that no fault  whatsoever
could be found with the message of the Governor.
94.   Having submitted thus far, learned senior counsel, pointedly  referred
to paragraph 5 of the message dated 9.12.2015.  It was  conceded,  that  the
contents of paragraph 5, were instructions to the House, that until the  6th
session  (to  commence  on  16.12.2015)  of  the  Legislative  Assembly  was
prorogued, no Presiding Officer would alter the  party  composition  of  the
House.      It was acknowledged, that  this  could  only  be  understood  to
mean, that disqualification proceedings under the  “Tenth  Schedule”,  would
have to await the outcome of the motion against the  Speaker  under  Article
179(c).  In order to demonstrate the propriety and  constitutional  validity
of paragraph 5 of the message, it was submitted, that once it  is  concluded
(- that is, if this Court, on accepting the submissions advanced  on  behalf
of the respondents, so concludes), that the Governor had the  discretion  to
summon or prepone the sitting of the  Assembly  under  Article  174(1)  read
with Articles 163 and 179(c), then it would also be up to  the  Governor  to
decide when and/or where, the House should meet.  It was pointed  out,  that
the Governor is undisputedly a  high  constitutional  functionary.   And  as
such,  his  decisions  could  neither  be  taken  lightly,  nor  be   easily
interfered with.  By inviting the Court’s attention to Article 174,  it  was
urged, that the above provision vests  responsibility  in  the  Governor  to
summon, prorogue or dissolve the Assembly.   The  Governor  is  mandated  to
summon the Legislative Assembly “at such time and place as he  thinks  fit”.
The instant connotation in Article 174, makes it abundantly clear, that  the
Governor has to discharge the above function, as he in his  own  discretion,
considers  appropriate.   Premised  on  the  aforesaid  foundation,  it  was
contended, that the instant discretion conferred on the Governor, could  not
be subservient to any  aid  and  advice.   It  was  pointed  out,  that  the
fixation of time for sitting of the Legislative Assembly, determined by  the
Governor under Article 174, was an issue on which reasonable  persons  could
differ widely.  As such, it would not be proper for any Court  to  interfere
with, the time and place fixed by the Governor in summoning the Assembly.
95.   On the subject of the power of the judicial review, with reference  to
the exercise of discretion by the President (in relation to the  removal  of
a Governor), it has to be accepted, that the power of  judicial  review  has
to be limited to situations  wherein,  it  could  be  established  that  the
President  had   exercised   his   discretion   wantonly,   whimsically   or
arbitrarily.  It was urged that the same position would apply  to  decisions
of Governors as well. It was submitted,  that  the  appellants  before  this
Court, were obliged to establish, that the Governor had  acted  deliberately
in an unprincipled manner, and  that,  the  action  of  the  Governor  would
impair the constitutional trust assigned to him. On the  present  aspect  of
the matter, learned senior counsel placed reliance on B.P. Singhal v.  Union
of India[8],  and  invited  our  attention  to  the  following  observations
recorded therein:
“71. When a Governor holds office during the pleasure of the Government  and
the power to remove at the pleasure of the President  is  not  circumscribed
by any conditions or restrictions, it follows that the power is  exercisable
at any time, without assigning any cause. However, there  is  a  distinction
between the need for a cause for the removal, and the need to  disclose  the
cause for removal. While the President  need  not  disclose  or  inform  the
cause for his removal to the Governor, it is imperative that  a  cause  must
exist. If we do not  proceed  on  that  premise,  it  would  mean  that  the
President on the advice of the Council of  Ministers,  may  make  any  order
which may be manifestly arbitrary or  whimsical  or  mala  fide.  Therefore,
while no cause or reason be disclosed or assigned for  removal  by  exercise
of such prerogative power, some valid cause should exist  for  the  removal.
Therefore, while we do  not  accept  the  contention  that  an  order  under
Article 156 is not justiciable, we accept  the  contention  that  no  reason
need be assigned and no cause need be shown and no notice need be issued  to
the Governor before removing a Governor.
            xxx              xxx             xxx
76. This Court has examined in several cases, the scope of  judicial  review
with   reference   to   another   prerogative   power   —   power   of   the
President/Governor to grant pardon, etc. and to suspend,  remit  or  commute
sentences. The view of this Court is that the power to pardon is a  part  of
the constitutional scheme, and not an act of grace as in England.  It  is  a
constitutional  responsibility  to  be  exercised  in  accordance  with  the
discretion contemplated by the context. It is not a matter of privilege  but
a matter of  performance  of  official  duty.  All  public  power  including
constitutional power, shall never be exercisable arbitrarily or  mala  fide.
While  the  President  or  the  Governor  may  be  the  sole  Judge  of  the
sufficiency of facts and the propriety of granting  pardons  and  reprieves,
the power being an enumerated power in  the  Constitution,  its  limitations
must be found in the Constitution itself.  The  Courts  exercise  a  limited
power of  judicial  review  to  ensure  that  the  President  considers  all
relevant materials before coming to his decision. As the  exercise  of  such
power is of the widest amplitude, whenever such power is  exercised,  it  is
presumed that the President acted properly and carefully after an  objective
consideration of all aspects of the matter. Where  reasons  are  given,  the
Court may interfere if the reasons are  found  to  be  irrelevant.  However,
when reasons are not given, the Court may interfere only where the  exercise
of power is vitiated by  self-denial  on  wrong  appreciation  of  the  full
amplitude of the power under Article 72 or where the decision is  arbitrary,
discriminatory or mala fide [vide Maru Ram v. Union of India  1981  (1)  SCC
107, Kehar Singh v. Union of India 1989 (1) SCC 204, etc.].
            xxx              xxx             xxx
82.   The President in exercising power under Article 156(1) should  act  in
a manner which is not arbitrary, capricious or unreasonable.  In  the  event
of challenge of withdrawal of  the  pleasure,  the  Court  will  necessarily
assume that it is for compelling reasons. Consequently, where the  aggrieved
person is not able to establish a prima facie instance of  arbitrariness  or
malafides, in his removal, the Court  will  refuse  to  interfere.  However,
where a prima facie case of arbitrariness or  malafides  is  made  out,  the
Court can require the  Union  Government  to  produce  records/materials  to
satisfy itself that the withdrawal of pleasure was for good  and  compelling
reasons. What will constitute good and compelling reasons would depend  upon
the facts of the case. Having regard to  the  nature  of  functions  of  the
Governor  in  maintaining  centre-state  relations,  and   the   flexibility
available to the Government in such matters, it  is  needless  to  say  that
there will be no interference unless a very strong case  is  made  out.  The
position, therefore, is that the decision is open to judicial review but  in
a very limited extent.
83. We summarise our conclusions as under:
(i) Under Article 156(1), the Governor holds office during the  pleasure  of
the President. Therefore, the President can remove the Governor from  office
at any time without assigning any reason and without giving any  opportunity
to show cause.
(ii) Though no reason need be assigned for discontinuance  of  the  pleasure
resulting in removal, the power under Article156(1) cannot be  exercised  in
an arbitrary, capricious or unreasonable manner. The power will have  to  be
exercised in rare and exceptional circumstances  for  valid  and  compelling
reasons. The compelling reasons are not restricted to  those  enumerated  by
the  petitioner  (that  is  physical/mental   disability,   corruption   and
behaviour unbecoming of a Governor) but  are  of  a  wider  amplitude.  What
would be compelling reasons would depend upon the  facts  and  circumstances
of each case.
(iii) A Governor cannot be removed on the ground that  he  is  out  of  sync
with the policies and ideologies of the Union Government  or  the  party  in
power at the Centre. Nor can he be removed on  the  ground  that  the  Union
Government has lost confidence in him. It follows therefore that  change  in
government at Centre is not  a  ground  for  removal  of  Governors  holding
office to make way for others favoured by the new government.
(iv) As there is no need to assign reasons, any removal as a consequence  of
withdrawal of the pleasure will be assumed to be valid and will be  open  to
only a  limited  judicial  review.  If  the  aggrieved  person  is  able  to
demonstrate prima facie that his removal  was  either  arbitrary,  malafide,
capricious or whimsical, the Court will call upon the  Union  Government  to
disclose to the Court, the material upon which the President had  taken  the
decision to  withdraw  the  pleasure.  If  the  Union  Government  does  not
disclose  any  reason,  or  if  the  reasons  disclosed  are  found  to   be
irrelevant, arbitrary, whimsical, or malafide,  the  Court  will  interfere.
However, the court will not interfere merely on the ground that a  different
view is possible or that the material or reasons are insufficient.”

Based on the legal position declared by this Court, it was  submitted,  that
the prayer addressed by the appellants, to  interfere  with  the  discretion
exercised by the Governor in his order, and  his  message  dated  9.12.2015,
ought to be rejected.
96.   Learned senior counsel further contended, that interference  with  the
action of the Governor could not be  based  on  any  alleged  personal  mala
fides.  It was asserted, that established malice in law only, could lead  to
an adverse inference.  In this behalf, reliance was placed  on  S.R.  Bommai
v. Union of India[9], wherein it has been held as under:
“390. We find ourselves unable to  agree  with  the  High  Court  except  on
points (1) and (2). To begin with, we must say that  question  of  'personal
bonafides' of Governor is really irrelevant.
391. We must also say that  the  observation  under  point  (7)  is  equally
misplaced. It is true that action under Article 356 is taken  on  the  basis
of satisfaction of the Union Council of  Ministers  but  on  that  score  it
cannot be said that 'legal malafides' of the Governor  is  irrelevant.  When
the article speaks of the satisfaction being formed  on  the  basis  of  the
Governor's report, the legal malafides, if any, of the  Governor  cannot  be
said to the irrelevant. The Governor's report may not be conclusive but  its
relevance is undeniable. Action under  Article 356 can  be  based  only  and
exclusively upon  such  report.  Governor  is  a  very  high  constitutional
functionary. He is supposed to act fairly and honestly consistent  with  his
oath. He is actually reporting against his own government. It  is  for  this
reason that Article 356 places  such  implicit  faith  in  his  report.  If,
however, in a given case his report is vitiated by legal  malafides,  it  is
bound to vitiate the President's action as well. Regarding the other  points
made in the judgment of the High Court, we must  say  that  the  High  Court
went wrong in law in approving and upholding the Governor's report  and  the
action  of  the  President  under  Article 356.  The  Governor's  report  is
vitiated by more than one  assumption  totally  unsustainable  in  law.  The
Constitution does not create an obligation that the political party  forming
the  ministry  should  necessarily  have  a  majority  in  the  Legislature.
Minority Governments are  not  unknown.  What  is  necessary  is  that  that
government should enjoy the confidence of the House. This  aspect  does  not
appear to have been  kept  in  mind  by  the  Governor.  Secondly  and  more
importantly, whether the Council of Ministers has  lost  the  confidence  of
the House is not a matter to be determined  by  the  Governor  or  for  that
matter anywhere else except  the  floor  of  the  House.  The  principle  of
democracy underlying  our  Constitution  necessarily  means  that  any  such
question should be decided on the floor of  the  House.  The  House  is  the
place where the democracy is in action.  It  is  not  for  the  Governor  to
determine the said question on his own or on his own verification.  This  is
not a matter within his subjective satisfaction. It  is  an  objective  fact
capable of being established on the floor of the House. It is gratifying  to
note that Sri R. Venkataraman, the former President of  India  has  affirmed
this view in his Rajaji Memorial Lecture  (Hindustan  Times  dated  February
24, 1994).”

Based on the above proposition declared by this Court, it  was  urged,  that
the submissions advanced on behalf of the  appellants  do  not  justify  any
interference, with the impugned actions of the Governor.
97.   On the issue of discretion, learned senior  counsel,  placed  reliance
on Article 163(2).  Based thereon, it was  submitted,  that  the  Governor’s
discretion, for all intents and purposes, must be deemed to  be  final.   It
was submitted, since Article 163(2) itself postulates,  that  “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”,  by  itself
absolves the Governor from a challenge to the discretion exercised  by  him.
It was submitted, that Article 163(2) was neither a defunct nor a  redundant
provision, and as such, it could neither be overlooked nor ignored.  It  was
contended, that the words employed in  Article  163(2)  must  be  given  due
weightage.  And if that was to be done, there could be no  doubt,  that  the
discretion exercised by the Governor under Article 163(2), would have to  be
considered in  a  manner,  as  would  protect  it  from  the  scope  of  any
challenge.
98.   With reference to the  Governor’s  message  dated  9.12.2015,  it  was
submitted, that the same was justified  under  Article  175(2),  whereunder,
the Governor’s message can be “with reference to a Bill then pending in  the
Legislature or otherwise”.  Article 175(2) by  itself  makes  it  abundantly
clear, that messages are not limited to the Bills pending before the  House.
 But could extend to and include other matters. Learned  counsel  clarified,
that the authority vested with the Governor under Article  200,  should  not
to be confused by reference to the words  “or  otherwise”  used  in  Article
175(2).  The message sent by the Governor can also relate to  a  Bill  under
Article 200, as is apparent on from the expression “with respect to  a  Bill
then pending in the Legislature” used in Article 175(2).  It was  submitted,
that reliance placed  by  the  appellants  on  Union  of  India  v.  Valluri
Basavaiah Chowdhary[10], for asserting that the Governor could not send  any
message under Article 175(2), with regard to  a  resolution  pending  before
the Legislative Assembly, was wholly  misconceived.   It  was  pointed  out,
that the controversy dealt with in the above judgment pertained  to  Article
252, and in the context of the above provision, this Court  held,  that  the
State Legislature meant only the House of the Legislature.  Insofar  as  the
present controversy is concerned, it was submitted, that the same  pertained
to a notice of resolution for the  removal  of  the  Speaker  under  Article
179(c).  It was pointed out, that the words “or otherwise”  referred  to  in
Article 175(2) had a wide import,  and  that,  there  was  no  justification
whatsoever to limit the same, so as to unnecessarily curtail  the  authority
of the Governor, to that which is contemplated under Article  200.   It  was
submitted, that if the power of the Governor  with  reference  to  messages,
was to be limited to the responsibility enshrined in him under Article  200,
then  the  words  “or  otherwise”  expressed  in  Article  175(2)  would  be
superfluous and otiose.  Additionally it was contended, that Article  175(2)
also mandates, that the Legislative  Assembly  would  deal  with  a  message
received from the Governor “with all convenient despatch”, and would take  a
call thereon,  as  may  be  “required  by  the  message  to  be  taken  into
consideration”.  It was therefore contended, that  a  message  addressed  by
the Governor under Article 175(2), to the State  Legislative  Assembly,  was
not actually in the nature of a command.  And yet, the same was bound to  be
taken into consideration “with all convenient despatch”.  In the above  view
of the matter, it was submitted, that the term “or otherwise” could  not  be
ascribed a narrow or limited meaning, but  was  bound  to  be  extended  the
widest  amplitude,  in  harmony  with  the   related   provisions   of   the
Constitution.
99.   It was pointed out, that  in  the  past  also  messages  sent  by  the
Governor  were  assailed  through  judicial  proceedings.  In  this  behalf,
reference was made to K.A. Mathialagan v. P. Srinivasan[11],  wherein  also,
the message sent by the Governor  pertained  to  a  vote  of  no  confidence
against the Speaker.  Reference was also made to  Pratapsing  Raojirao  Rane
v. Governor of Goa[12], wherein also, the message of the Governor  pertained
to a  notice  of  resolution  for  the  removal  of  the  Speaker.   It  was
submitted, that the message (dated 9.12.2015) which  has  been  assailed  by
the appellants in the present case, suggested that the House should  not  be
adjourned, till the notice of resolution for  the  removal  of  the  Speaker
stood determined finally, one way or the other. It was submitted,  that  one
of the proposed requirements contained in the message of the  Governor  was,
that the notice of resolution for the removal of the Speaker would be  taken
up as the  first  item  on  the  agenda.   It  was  pointed  out,  that  the
Governor’s message was merely to bring  to  the  notice  of  the  House  the
procedure that the House, was required to follow.  It was urged, that  under
Rule 153 of the ‘Conduct of Business Rules’ a notice of resolution  for  the
removal of the Speaker, had to be included in the list  of  business  before
any other business for the day, could be taken up.  Reference was also  made
to Rule 151 of the ‘Conduct of Business Rules’, which mandates that after  a
notice of resolution for the removal of  a  Speaker  is  tabled,  the  House
would not be adjourned till the motion of no  confidence  had  been  finally
disposed of.  In the above view of the matter,  it  was  pointed  out,  that
requiring the Assembly to take up the notice of resolution for  the  removal
of the Speaker, as the first item  in  the  agenda  (in  the  message  dated
9.12.2015), cannot be termed as an action at  the  hands  of  the  Governor,
based on his own whims and fancies.  It was urged, that the  message  needed
to be viewed as an advice tendered to the Assembly, so as to  deal  with  an
important issue, in consonance  with  the  provisions  of  the  ‘Conduct  of
Business Rules’.
100.  Learned senior counsel then  invited  the  Court’s  attention  to  the
second direction in the message dated 9.12.2015, whereby the Deputy  Speaker
was obliged to preside over the House, from the first moment  of  the  first
sitting of the House.  It was submitted, that the  above  noted  action  was
also in the nature of an advice, so as  to  make  sure  that  the  procedure
adopted before the  House  would  not  infringe  Article  181(1)  read  with
Article 182. It was pointed out, that the above provisions  postulate  inter
alia, that the Speaker  would  not  preside  over  the  proceedings  of  the
Assembly, wherein a resolution for his own removal, was  to  be  considered.
As such, it was submitted,  that  during  the  period  when  the  notice  of
resolution for  the  removal  of  the  Speaker  –  Nabam  Rebia,  was  under
consideration of the House, the Deputy Speaker was liable  to  preside  over
the proceedings of the House.  In this behalf, while  it  was  acknowledged,
that even the Deputy Speaker – Tenzing Norbu Thongdok, should  similarly  be
treated as being debarred from presiding over the proceedings of the  House,
because a resolution for his (the Deputy Speaker’s) removal from office  was
pending consideration.  It was however submitted,  that  the  above  factual
position is not correct, as no notice of resolution for the removal  of  the
Deputy Speaker, had actually been moved. It was  submitted,  that  the  fact
that a notice of resolution for the removal of the Deputy  Speaker  (alleged
to have been presented to the Secretary  of  the  Legislative  Assembly,  on
16.11.2015),  was  a  complete  falsity,  as  despite   repeated   reminders
addressed by the Governor, seeking a copy of the notice  of  resolution  for
the removal of the Deputy Speaker, the same was not furnished  to  him.   It
was emphasized, that even before this Court, the appellants have  failed  to
establish, that such a notice of resolution for the removal  of  the  Deputy
Speaker – Tenzing Norbu Thongdok, had ever been  moved.   It  was  therefore
urged, that it was wholly legitimate for the Governor, in the facts  of  the
present case, to require the Deputy Speaker  of  the  Assembly,  to  preside
over the proceedings, of the notice of resolution for  the  removal  of  the
Speaker – Nabam Rebia.
101.  It was also the contention of learned senior  counsel,  that  Speakers
against whom resolutions for their removal have been  moved,  are  known  to
have resorted to unsavoury means, to defer consideration thereon.   In  this
behalf, learned counsel placed reliance on State  of  Punjab  v.  Satya  Pal
Dang[13], the K.A. Mathialagan case11, and  Nipamacha  Singh  v.  Secretary,
Manipur Legislative Assembly[14].
102.  It was also submitted, that the  Tenth  Schedule,  was  added  to  the
Constitution, by the Constitution (Fifty-second Amendment) Act,  1985  which
came into force with effect from 1.3.1985.  It was pointed out,  that  under
the Tenth Schedule power is vested with Speaker alone, for exercising quasi-
judicial functions (under Paragraph 6,  of  the  Tenth  Schedule).   It  was
contended, that any misuse of the power vested with the  Speaker  under  the
Tenth Schedule, could result in derailing  the  democratic  process  of  the
concerned State.  Insofar as the present controversy is  concerned,  it  was
pointed out, that the concerned Speaker – Nabam Rebia, issued notices to  14
MLAs belonging to the INC, for  their  disqualification  on  7.12.2015,  and
thereby, took active steps  to  derail  the  democratic  process,  specially
when,  a  resolution  for  his  own  removal  had  already  been  moved  (on
19.11.2015).   It  was  asserted,  that  the  action  of  the  Governor   in
requiring, that “… no Presiding Officer shall alter  the  party  composition
in the House” in the message dated 9.12.2015, was only aimed  at  preserving
the democratic process,  so  that  the  Speaker  by  exercising  his  quasi-
judicial  powers  under  the  Tenth  Schedule,  would  not  so  change   the
composition of the House, as  would  favourably  tilt  the  motion  for  his
removal, in his own favour.  It was accordingly  asserted,  that  no  motive
should be attributed to the message of the Governor  dated  9.12.2015,  more
particularly, paragraph 5 thereof.  It was submitted, that save  and  except
the ultimate desire of the Governor to preserve the democratic process,  the
message dated 9.12.2015 had no other  fall  out/consequence.   It  was  also
contended, that as the question  of  removal  of  the  Speaker  was  pending
consideration before the House, it would have been a serious  constitutional
impropriety on the part of the Speaker,  to  carry  on  presiding  over  the
proceedings of the House, and more  particularly,  to  conduct  or  continue
with  the  quasi-judicial  functions  vested  with  him,  under  the   Tenth
Schedule.  In conclusion, it was pointed out, that the  action  proposed  by
the Governor, through paragraph  5  of  the  message  dated  9.12.2015,  was
merely aimed at maintaining the constitutional integrity of the  House,  and
preserving the constitutional  morality  expected  of  the  Speaker  of  the
House.
103.  It was asserted by learned senior counsel, that it was  apparent  from
the facts and circumstances of  the  present  case,  that  the  Speaker  had
entertained a petition for disqualification, against 14  MLAs  belonging  to
the INC on 7.12.2015, well  after,  the  Governor  had  sought  information,
about the notice for the removal of the Speaker.  It was submitted, that  in
the first instance, the Secretary of the  Legislative  Assembly,  maintained
complete silence,  and  chose  not  to  respond  to  the  letter(s)  of  the
Governor. Finally through a communication dated 7.12.2015, the Secretary  of
the Legislative Assembly wrote to  the  Governor,  informing  him  that  the
Speaker was on tour, and the notice of resolution for his own  removal  (for
the removal of the Speaker – Nabam Rebia), as well as, that  of  the  Deputy
Speaker – Tenzing Norbu Thongdok,  were  in  the  personal  custody  of  the
Speaker – Nabam Rebia.  In the above view of the matter, it  was  submitted,
that it was natural for the Governor to have  addressed  the  message  dated
9.12.2015, with a clear description of the manner in which  the  proceedings
of the House were to  be  conducted,  when  the  6th  session  commenced  on
16.12.2015.   This was done by the Governor, according to  learned  counsel,
only to ensure that procedure adopted by the House, was in  consonance  with
the provisions of the Constitution, and the ‘Conduct of Business Rules’.
104.  Based on the aforementioned submissions, it was the contention of  Mr.
Rakesh Dwivedi, learned  senior  counsel,  that  the  prayers  made  by  the
appellants before this Court, being devoid of  any  merit,  deserved  to  be
rejected.
105.  Mr. T.R. Andhyarujina, learned Senior Advocate, entered appearance  on
behalf of respondent no. 16  –  the  Governor  of  the  State  of  Arunachal
Pradesh.  It would be pertinent to mention, that the  Governor  had  entered
appearance before the High Court, by moving  an  interlocutory  application,
for  the  limited  purpose  of  justifying  his  order  and  message   dated
9.12.2015, and also, in order to demonstrate that  he  was  unaware  of  the
notice of the resolution dated 16.11.2015, moved  for  the  removal  of  the
Deputy Speaker – Tenzing Norbo Thongdok.
The sixth sequence of facts:
106.  It was contended by  learned  senior  counsel,  that  there  had  been
political turmoil in the State  of  Arunachal  Pradesh,  since  March/April,
2015.  It was pointed out, that the situation got worst in September,  2015,
when a group of 21 MLAs belonging to the INC,  clamoured  for  a  change  of
guard, which was targeted at the  Chief  Minister  –  Nabam  Tuki.   It  was
submitted, that the above 21 MLAs had camped in Delhi for three  months,  so
as to press their claim before  the  central  leadership  (of  the  National
Congress Party).  During the above period, all the 21 MLAs belonging to  the
INC, had refused to attend meetings of the  Congress  Legislature  Party  in
the State  of  Arunachal  Pradesh.   This  factual  position,  according  to
learned senior counsel, has been acknowledged by the appellants  themselves,
even before this Court.
107.  It was submitted, that on 14.9.2015, 17 of the 21  MLAs  belonging  to
the INC, were invited for an informal dinner by the Chief Minister  –  Nabam
Tuki, at his  official  residence.   At  the  aforesaid  dinner,  they  were
coerced  into  signing  identically  worded  resignation  letters.   It  was
submitted, that the Speaker – Nabam Rebia, was also present  at  the  dinner
hosted by the  Chief  Minister.   It  was  brought  out,  that  rather  than
accepting all the  17  resignation  letters,  the  Speaker  –  Nabam  Rebia,
accepted resignation letters of only two of the MLAs  -  Gabriel  D.  Wangsu
and Wanglam  Sawin.   Having  accepted  the  two  resignation  letters,  the
Speaker issued a notification on 1.10.2015, declaring that their  respective
Assembly segments, had been rendered vacant (under  Article  190).   It  was
pointed out, that on 11.10.2015, the aforesaid MLAs addressed  a  letter  to
the Governor  complaining  about  the  manner  in  which  their  resignation
letters were got signed under coercion,  as  also,  the  illegal  acceptance
thereof.  It was pointed out, that the aforesaid  letter(s)  were  available
on the record.  The letters referred to, are not being extracted herein  for
reasons of brevity.  It was submitted, that the  said  two  members  of  the
House, whose resignations were accepted, approached the Gauhati High  Court,
by filing Writ Petition (C) No.6193 of 2015.  On 7.10.2015, the  High  Court
passed an interim order staying the  orders  accepting  their  resignations.
The above writ petition, it was submitted, was dismissed by the  High  Court
on 12.1.2016, and a Petition for  Special  Leave  to  Appeal  assailing  the
same, was dismissed by this Court.  It was pointed out, that the  subsequent
dismissal of the judicial proceedings by the High Court, and by this  Court,
were inconsequential, inasmuch as, at the relevant juncture, the High  Court
having found prima facie merit in the claim raised by the two MLAs,  against
the acceptance of their resignation letters, had  stayed  the  operation  of
the order by which their resignation letters  had  been  accepted.   It  was
urged, that it was relevant to keep in mind the impression which would  have
been created in the mind of the Governor, by the said interim directions.
108.  It was submitted, that immediately after the resignation  of  the  two
MLAs was accepted, 21 MLAs belonging to the INC, wrote to  the  Governor  on
11.10.2015, that the  Chief  Minister  –  Nabam  Tuki,  did  not  enjoy  the
majority of the House, and as  such,  was  running  a  minority  government.
Shortly after the receipt of the communication  dated  11.10.2015,  13  MLAs
(11 from the BJP, and 2 Independent MLAs) issued a notice of resolution  for
the  removal  of  the  Speaker  –  Nabam  Rebia,  under  Article  179(c)  on
19.11.2015.  It was submitted, that the aforesaid notice ought to have  been
taken up at the earliest, and in any case, soon after the expiry of 14  days
(expressed in the first proviso, under Article 179).   It  was  highlighted,
that on the same  day  on  which  the  notice  was  moved,  a  copy  of  the
resolution (dated 19.11.2015) was endorsed by  the  MLAs  to  the  Governor.
And on the same day – 19.11.2015, all the 13 signatories to  the  resolution
for removal of the  Speaker,  made  a  written  request,  to  the  Governor,
seeking preponement of the 6th session of the  House.   And  for  an  urgent
consideration by the House,  of  the  resolution  for  the  removal  of  the
Speaker – Nabam Rebia.  (this communication, has been extracted above).
109.  It was further the submission  of  learned  senior  counsel,  that  in
order to derail the action initiated by the 13 MLAs, seeking removal of  the
Speaker, the Chief Whip of the Congress Legislature Party  –  Rajesh  Tacho,
petitioned the Speaker under Article 191(2) on 7.12.2015, to  disqualify  14
MLAs, belonging to the INC, on account of their having  allegedly  given  up
their allegiance/membership to the political party  (-  the  INC)  on  whose
ticket they had been elected to the House.  The above petition,  called  for
their disqualification under the Tenth Schedule.   It  was  submitted,  that
the Governor having viewed the developments referred to  hereinabove,  found
it appropriate to exercise his discretion under Article 174, to prepone  the
6th  session  of  the  Assembly,  from  14.1.2016  to  16.12.2015.   It  was
asserted, that the aforesaid action of the Governor, would enable the  House
to consider the notice of resolution for the removal of the Speaker –  Nabam
Rebia, at the earliest, in consonance with Article 179(c) and Rules  151  to
153 of the ‘Conduct of Business Rules’.
110.  It was submitted, that the factual position depicted hereinabove,  had
not been invented by the Governor, in order to satisfy  the  High  Court  or
this Court, on the then prevailing political conditions, which  necessitated
the passing of the order and the message dated 9.12.2015, but  was  apparent
from the monthly letters, addressed by the Governor to  the  President.   It
was pointed out, that the first of the above letters, was addressed  by  the
Governor to the  President  on  17.10.2015.   An  extract  of  the  same  is
reproduced hereunder:
                                              “No. GS/I(C)-129/2014 (Vol-II)
                                                          17th October, 2015
Hon’ble Shri Pranab Mukherjee Ji,
       This  is  a  Special  Report  on  the  latest  significant  political
developments in my State of Arunachal Pradesh.
      In view of the prevailing political imbroglio  in  the  State  arising
out of growing dissidence in the Congress, the Congress Legislators seem  to
be divided into two groups, due to internal infighting among them for  power
and position and also one group demanding resignation of the Chief  Minister
Shri Nabam Tuki for  alleged  failure.   Media  reports  indicate  that  the
dissident group has been camping at New Delhi to appeal to the AICC  Central
Leadership for a change of leadership in the State, but  AICC  has  not  yet
responded to their appeal.  As per  media  report,  Shri  Kalikho  Pul,  the
former Finance Minister of the State and sitting MLA  is  allegedly  leading
the dissident  group  and  about  37  Legislators  in  the  60-Member  State
Assembly have agreed to support Shri Kalikho Pul’s bid for leadership.   The
State BJP termed it as unfortunate and demanded  the  resignation  of  Chief
Minister Shri Nabam Tuki, accusing him of failing  to  honour  the  people’s
mandate alleging that, as a result, the developmental  activities  continued
to be adversely affected due to the  existing  political  scenario.   It  is
pertinent to mention here that Arunachal Pradesh has a  60-Member  Assembly,
out of  which  Congress  has  47,  BJP-11  and  2  Independent  Legislators.
However, the Arunachal Pradesh Congress  Committee  Chief  Shri  Padi  Richo
said that the report was false, fabricated and misleading.
      It is reported that, in a high political  drama,  on  16th  September,
2015, Shri Gabriel Denwang Wangsu and  Shri  Wanglam  Sawin,  both  Congress
MsLA, were invited to a dinner party at the residence of  Shri  Nabam  Tuki,
Chief  Minister  where  17  MsLA  of  the  Congress  party  attended.   Some
loyalists of Shri Nabam Tuki compelled them to sign in  resignation  letters
without even reading the content therein,  in  front  of  Shri  Nabam  Tuki,
Chief Minister, Shri Nabam Rebia, Speaker of  the  State  Assembly  and  the
President  of  Pradesh  Congress  Committee.   On  1st  October,  2015   the
Secretary, Legislative Assembly notified the resignation of two  Legislators
– Shri Gabriel Denwang Wangsu, MLA Kanubari  and  Shri  Wanglam  Sawin,  MLA
Khonsa (East) have resigned from the Arunachal Pradesh Legislative  Assembly
and the Speaker has accepted  their  resignations  under  the  provision  of
Rules  of  Procedure  and  Conduct  of  Business  of  the   Assembly.    The
Notification further informed that consequent upon  their  resignation,  the
seats of 55-Khonsa East (ST) AC and 58-Kanubari (ST)  AC  respectively  have
fallen vacant. (Notification at Annexure-I).  The  two  MsLA  in  a  written
complaint dated 11th October, 2015 to  the  Governor  informed  about  their
being coerced to submit typed resignation letters addressed to  the  Speaker
“under complete duress” and requested for instituting an  enquiry  into  the
whole ‘resignation incident’ through an agency like  the  CBI.   A  copy  of
Joint Complaint letter dated 11th October, 2015, addressed to  the  Governor
by Shri Gabriel Denwang Wangsu, MLA Kanubari and  Shri  Wanglam  Sawin,  MLA
Khonsa (East) is enclosed at Annexure-II for your kind perusal.
      They also submitted another complaint stating  that  some  anti-social
elements and local miscreants frequently visited their  official  residences
at Itanagar and private property giving mental agony and  raising  fears  in
them and their families.  In view of the above, I  advised  the  State  Home
Minister with copies to the State Chief Minister, Chief  Secretary  and  DGP
to look into the  issue  and  direct  all  concerned  to  provide  necessary
security to Shri Wanglam Sawin, MLA and Shri  Gabriel  D.  Wangsu,  MLA  and
also to their family members, and that the miscreants  /  culprits  involved
in the intimidation cases be apprehended and  brought  to  justice,  at  the
earliest. (Copy at Annexure-III).
      While condemning the move to obtain resignation letter of 17  MsLA  by
coercing  them  and  putting  them  under  duress,  the  People’s  Party  of
Arunachal  (PPA)  termed  the  alleged  forced  resignation  as  ‘murder  of
democracy’ and demanded  immediate  intervention  of  the  Governor  on  the
matter  to  ascertain  that  the  two  Legislators  should  get  back  their
constitutional rights.   Opposition  Leader  Shri  Tamiyo  Taga  (BJP),  who
himself was once the Speaker of the State Assembly, questioned the  role  of
the Speaker Shri Nabam  Rebia,  for  misusing  his  power  and  position  by
creating political drama over the  resignation  of  two  sitting  MsLA,  and
stated that the MsLA resigned from the State Assembly under duress.
      Aggrieved by the Order of the Hon’ble Speaker,  Sarvashri  Wangsu  and
Sawin filed Writ Petition before the Hon’ble Gauhati High Court  vide  WP(C)
6193/2015 praying  for  relief.   The  Hon’ble  Gauhti  High  Court  on  7th
October, 2015 stayed the Notification of the Speaker  of  Arunachal  Pradesh
Legislative Assembly dated 01.10.2015 accepting the resignation  letters  of
the two Congress MsLA and declaring the seats  vacant  in  their  respective
constituencies, and directed that the Election  Commission  shall  not  take
any action on the basis  of  the  Notification  to  hold  bye-election.   In
another development, in a  joint  letter  addressed  to  the  Governor,  the
Arunachal Students’ Federation (ASF) and the Wancho  Students’  Union  (WSU)
urged to impose President’s Rule in the State, following the  disclosure  of
the resignation of two MsLA.
      Meanwhile, Shri Kalikho Pul,  MLA  recently  complained  to  me  about
threats being issued to him by unknown miscreants  and  also  threats  meted
out to his family members by a  group  of  miscreants  /  criminals  at  his
Official Bungalow.  He requested for providing adequate security to him  and
his family members as he  apprehended  grave  threats  to  their  lives.   I
advised the State Home Minister  with  intimation  to  the  Chief  Minister,
Chief Secretary and  DGP  to  take  immediate  steps  to  provide  necessary
security to  Shri  Pul  and  his  family  and  also  to  direct  the  Police
authorities to take up investigation of the Case, identify  and  arrest  the
culprits and bring them to book under the Law, at the earliest.
      xxx   xxx              xxx
      For kind information of Hon’ble President of India please.
      With Esteemed Regards,
            Yours sincerely,
            signed (illegible)          (J.P. Rajkhowa)”
111.  The second of the letters addressed by the Governor to  the  President
was dated 19.11.2015.  An extract of the same is reproduced hereunder:
                                                    “No. GOV-AP/SPL-REP/2015
                                                         19th November, 2015
Hon’ble Shri Pranab Mukherjeeji,
       This  is  a  Special  Report  highlighting  some  latest  significant
developments in my State of Arunachal Pradesh.
      In continuation to my Special Report on Political Development  in  the
State vide No.GS/I(C)-129/2014 (Vol-II) dated  17th  October,  2015  and  my
subsequent Monthly Report for the  Month  of  October,  2015  No.  G/ML/2015
dated 1st November 2015, it has been observed that the  political  imbroglio
in the State has been storming with growing dissidence amongst the  Congress
Legislators,  including  some  Ministers  due  to  internal  infighting  for
changing of leadership in the State.
      The Congress Legislature Party (CLP)  with  47  MsLA  in  a  60-Member
House has cracked into two rival  factions  in  the  recent  past.   It  was
reported that the Congress Legislature  Party  (CLP)  Meeting  was  held  at
Rajiv Gandhi Bawan, Itanagar on 8th November, 2015, which  was  attended  by
25 Congress Legislators including Shri Nabam Tuki, Chief Minister,  Shri  V.
Narayanasamy, General Secretary, AICC  and  Dr.  K.  Jaya  Kumar,  Secreary,
AICC, both In-Charge of Arunachal Pradesh also attended  the  Meeting  along
with Shri Padi Richo, Aunachal Pradesh  Congress  Committee  (APCC),  Office
Bearers of APCC, and prominent leaders of INC Party from all  the  Districts
of Arunachal Pradesh.  Those in support of Shri Nabam Tuki are stationed  in
Itanagar, the Capital City, making occasional appearances before  the  media
with the Chief Minister, while the dissidents group, comprising 21  Congress
Legislators,  seeking  a   change   of   leadership,   citing   “ineffective
governance”, financial  mismanagement,  corruption  and  autocratic  way  of
functioning of the Chief Minister Shri Nabam  Tuki,  have  been  camping  in
Delhi for the past two months or so.
      The  Legislators  present  in  the  Meeting  condemned  the  dissident
Legislators for abstaining  from  the  CLP  Meeting.   The  Legislators  who
attended the CLP Meeting were, (1) Shri  Nabam  Tuki,  Chief  Minister,  (2)
Shri Tanga Byaling, Home Minister, (3)  Shri  Gojen  Gadi,  Minister  PWD  &
Election, (4)  Shri  Rajesh  Tacho,  Minister  Health  &  Family  Welfare  &
Parliamentary  Affairs,  (5)  Shri  Tapang   Taloh,   Minister,   Education,
Libraries, Textile, Handloom & Handicrafts & Department of  Water  Resources
Development, (6) Shri Jomde Kena, Minister, Transport  and  Civil  Aviation,
Cooperation,  (7)  Shri  Phurpa  Tsering,  Minister,  Animal   Husbandry   &
Veterinary, Power (Civil), (8) Shri Tirong  Aboh,  Minister,  Department  of
Development  of  Tirap,  Changlang  Districts  and  Mines  with   additional
department of Civil Supplies and Consumer Affairs,  (9)  Shri  Takam  Pario,
Minister, Public Health Engineering & Water Supply, Department  of  Disaster
Management, (10) Shri Techi Kaso, Parliamentary Secretary, (11)  Shri  Kumsi
Sidisow,  Parliamentary  Secretary,  (12)  Shri  Alo  Libang,  Parliamentary
Secretary, (13) Shri Mama Natung, Parliamentary Secretary, (14) Shri  Jambey
Tashi,  Parliamentary  Secretary,  (15)  Shri  Tapuk   Taku,   Parliamentary
Secretary, (16) Shri Pani Taram, Parliamentary  Secretary,  (17)  Shri  Nikh
Kamin,  Parliamentary  Secretary,  (18)  Shri  Dikto  Yekar,   Parliamentary
Secretary, (19) Smt. Gum Tayeng, Parliamentary Secretary,  (20)  Shri  Karya
Bagang, Parliamentary  Secretary,  (21)  Shri  Bamang  Felix,  Parliamentary
Secretary, (22) Shri  Nyamar  Karbak,  Parliamentary  Secretary,  (23)  Shri
Punji Mara, Parliamentary Secretary, (24) Shri  Likha  Saaya,  Parliamentary
Secretary & (25) Shri Tatung Jamoh, Parliamentary Secretary.
      As  per  the  media  report,  Shri  V.  Narayanasamy,  AICC  In-charge
Arunachal  Pradesh  declared  Shri  Nabam  Tuki,  Chief  Minister   as   the
undisputed leader and claimed the State Government 100% stable.   He  termed
the absence of 21 dissident MsLA in CLP Meeting as an  act  of  indiscipline
and alleged State BJP and Union Minister of  State  for  Home  Affairs  Shri
Kiren Rijiju to  be  behind  this  open  defiance  and  have  been  creating
disturbance and hurdles in developmental activities.   In  the  Meeting,  it
was  reportedly  decided  to  initiate  disciplinary  action   against   the
dissident Legislators,  who  did  not  attend  the  CLP  Meeting.   He  also
reportedly stated that he would submit a report to the  Party  High  Command
on the situation and  suggest  disciplinary  action  against  the  21  MsLA.
Prominent among the 21 Legislators included former  Ministers  Shri  Kalikho
Pul, Shri Chowna Mein,  Shri  Kumar  Waii,  Shri  Wanglin  Lowangdong,  Shri
Thangwang Wangham, Shri Kamlung Mossang, most of whom were dropped from  the
Ministry led by Shri Nabam Tuki recently.
      The State BJP strongly condemned the above unwarranted  statements  of
Shri Narayanasamy as political statements not based  on  truth  and  out  of
frustration due to their failure to put their house in order.
      Meanwhile, State BJP Legislators have  submitted  a  Memorandum  dated
12th November, 2015 to the  Governor  apprising  him  the  recent  political
crisis in the State and requested to take appropriate and  proactive  action
on the issue (copy  at  Annexure-I).   They  alleged  that  the  “stretched”
political stalemate has put the State  under  “complete  darkness”  and  the
continuation of the present Congress Government  has  made  each  and  every
citizen very “vulnerable”.  In the  Memorandum  they  claimed  that  in  the
House of total 60 Members, any Legislature Party to form a  Government  must
enjoy the confidence or support of minimum 31 Members of the House, but  the
Government led by Shri Nabam Tuki commands the  support  and  confidence  of
only 25 Legislators.  They also requested the  Governor  to  ask  the  State
Government not to take any major  decisions  in  financial  matters  because
Chief Minister Shri Nabam Tuki’s Government has been reduced to a  minority.
 The  State  BJP  also  reiterated  its  demand  that  the  ruling  Congress
Government in the state should surrender paving way for new regime  to  take
over. Highlighting the present political situation in the  state,  the  BJP,
in a Press Statement, claimed that  the  long  political  stalemate  in  the
rebel-plagued Government has  brought  all  developmental  activities  to  a
grinding halt and the long absence of the rebel  MLAs  from  the  state  has
totally paralyzed the State.
      In the  meantime,  Peoples’  Party  of  Arunachal  (PPA)  in  a  Press
Statement said that the Leader of the  Opposition  should  immediately  call
upon the Governor of the State and urge him to instruct the  Chief  Minister
to prove his majority or step down, owning moral responsibility.
      xxx   xxx                   xxx
      I will keep you informed of the subsequent developments,  if  any,  on
the above issues, in my subsequent Report.
      With Esteemed Regards,
            Yours sincerely,
            signed (illegible)               ( J.P. Rajkhowa )      ”

112.  The last letter addressed by the Governor  to  the  President,  before
the issuance of the  order,  and  the  message  dated  9.12.2015  was  dated
1.12.2015.  An extract of the same is reproduced hereunder:
                                                              “No. G/ML/2015
                                                                01 Dec, 2015
Hon’ble Shri Pranab Mukherjee ji,
My report for the month of November, 2015,  briefly  giving  an  outline  of
various events in Arunachal Pradesh is placed below for your kind perusal.
              xxx                    xxx                   xxx
On 19th November, 2015, thirteen Legislators submitted a Memorandum  to  the
Governor, praying to rescind the Summons issued for the  House  to  meet  on
14th January, 2016 and re-issue the Summons for the  House  to  meet  at  an
emergent date so that the Resolution aforesaid is  considered  and  disposed
at the earliest  in  accordance  with  the  scheme,  purpose  and  timeframe
envisaged by the Constitution makers.” (Copy at Annexure-I).
Further, 13 Members of the Arunachal Pradesh  Legislative  Assembly  (APLA),
addressing a letter to the Secretary of the Assembly,  issued  a  Notice  of
the following Resolution, under Article 179(c) read with Article 181 of  the
Constitution of India and Rules 151 to 154 of the  Rules  of  Procedure  and
Conduct of Business of APLA, for removal of the present Speaker.
“That this House removes Shri Nabam Rebia from the Office of the Speaker  of
the Arunachal Pradesh Legislative  Assembly  with  immediate  effect.”   The
signatories have given five grounds,  in  justification,  including  one  of
committing the “moral turpitude of the  highest  order  thereby  making  him
ineligible to  occupy  the  high  office  of  the  Speaker”,  since  he  was
reportedly “caught in an ugly scandal involving a woman from the State”  who
lodged an FIR on 15-11-2015 in the Women Police Station, Itanagar. (copy  at
Annexure-II).
While voicing on the same tune, the Peoples’ Party of Arunachal  (PPA)  also
demanded the Governor to prepone the Session of Legislative Assembly  slated
to be held from 14th January, 2016, alleging that  the  present  Nabam  Tuki
led Govt. has completely lost the confidence of  the  people  and  has  been
reduced to a minority and hence needs to prove his majority in the floor  of
the House.
It is pertinent to mention here that the present political scenario of  such
a long-drawn impasse extending over nearly three months,  with  21  Congress
Legislators camping in Delhi to impress upon the  party  Central  Leadership
for removing Shri Nabam Tuki from the post of Chief Minister, is not at  all
in the interest of the people and  the  State,  which  requires  urgent  and
immediate redressal, keeping in mind that political stability is  of  utmost
importance for the welfare of the people of this strategic border State.
The attention of the Raj  Bhavan has been drawn to the news item in  one  of
the local dailies, the Dawnlit Post, with headline ‘Tuki led  Government  is
100 percent stable: Narayanasamy; Eastern  Sentinel,  with  Headline  ‘Tuki,
undisputed leader: Narayanasamy’; Arunachal Front,  with  a  headline  ‘AICC
top brasses elicit 25 CLP MsLA view to report to  Delhi’,  where  it  states
that ‘Modi replaced all the Governors by  RSS  men  and  the  present  State
Governor wrote a letter against  the  Hollongi  Greenfield  Airport  without
consulting the CM which was unconstitutional.  The Governor has  turned  the
Raj  Bhavan  into  BHP  Hqs,  Narayanasamy  alleged.   I  expressed   strong
disapproval to such wild allegation by a former  Union  Minister  of  State,
Shri V. Narayanasamy, who is one of the senior leaders of one of  the  major
political parties of the country.  A copy of the Press Release  issued  from
the Raj Bhavan is attached vide Annex-‘B’.
              xxx                    xxx                   xxx
During the month under report, the insurgent activities, like  forcible  tax
collection by three factions of NSCN (K), NSCN (IM) and NSCN  (R)  in  three
Districts, i.e. Tirap, Changlang and Longding are still continuing.
The Detailed Report is enclosed herewith.
With kindest regards,
                                                            Yours sincerely,
                                                          signed (illegible)
                                                            (J.P. Rajkhowa)”

113.  Based on the three monthly reports submitted by the  Governor  to  the
President, it was contended, that there was sufficient material  before  the
Governor to arrive at  the  conclusion,  that  the  Speaker  was  likely  to
discharge his duties in a manner as  would  result  in  extending  political
favours to the INC.  It was submitted, that it was legitimately  apprehended
(- by the Governor), that the Speaker who was facing a notice of  resolution
for his removal, would exercise his powers  under  the  Tenth  Schedule,  to
disqualify the dissident MLAs (belonging to  the  INC),  and  thereby  stage
manage his majority in the House, with the support of  the  Chief  Minister.
This in turn, it was urged, would ward off the threat  to  the  position  of
the Chief Minister, as well.  It was submitted that, it  was  in  the  above
background, that the Governor expressed  in  his  message  dated  9.12.2015,
that the Presiding Officer during the course of consideration of the  notice
of resolution for the removal of the Speaker,  would  not  alter  the  party
composition  in  the  House.   It  was   submitted,   that   the   aforesaid
apprehension entertained by the Governor, came out  to  be  true,  when  the
Speaker  of  the  Legislative  Assembly,   issued   notices   on   7.12.2015
(returnable for 14.12.2015) for the removal of the said 14  MLAs,  belonging
to the INC.  It was pointed out, that even though none  of  the  above  MLAs
were  served,  proceedings  against  them  were  simply  adjourned  to   the
following day -  15.12.2015.   Even  the  adjourned  date  was  not  to  the
knowledge of the MLAs proceeded against.  And despite the  fact,  that  none
of the MLAs whose disqualification  was  sought,  had  been  served  or  had
entered appearance in the proceedings, they were  all  disqualified  by  the
Speaker, on 15.12.2015.  According to learned senior  counsel,  this  action
of the Speaker resulted in depletion of the strength of the Assembly.   This
depleted strength had the effect of reviving and securing his own  majority,
which was sufficient to effectively defeat the notice of resolution for  his
removal.  It was submitted, that it is  evident  that  the  order,  and  the
message of the Governor dated  9.12.2015,  were  based  on  good  and  sound
reasons, and were aimed at preserving an honest democratic  process  in  the
State.
The next instalment, of the legal response, on behalf  of  the  respondents:
114.  Relying on the decisions rendered by this Court in the  Samsher  Singh
case1, and in Madhya  Pradesh  Special  Police  Establishment  v.  State  of
Madhya Pradesh[15], as also, in State of Gujarat v. Justice R.A.  Mehta[16],
and especially in the Satya Pal Dang case13,  it  was  submitted,  that  the
Governor’s power to prorogue the Legislative Assembly under  Article  174(2)
was absolute, and without any  restriction  and  restraint,  and  that,  the
Governor could exercise his said power, in his own  discretion  without  any
aid or advice.
115.  Having invited our attention to  Article  163(2),  it  was  submitted,
that the power of the Governor with reference to a situation,  in  which  he
is to act in his own discretion is  not  only  final,  but  also  that,  the
validity of the exercise of such  discretion  by  the  Governor,  cannot  be
called in question,  before  any  Court.   It  was  asserted,  that  no  one
whatsoever had the right to determine, whether the Governor ought  or  ought
not to have acted, in his  discretion.  It  was  submitted,  that  the  only
situation, where the exercise of discretion by the Governor, can  be  called
in question is, when it can be established, that the Governor’s  action  was
perverse or capricious or  fallacious  or  extraneous  or  for  a  motivated
consideration.  In other words, when the  exercise  of  discretion,  can  be
described as  mala  fide.   Then,  and  then  alone,  according  to  learned
counsel, the same can be  questioned  by  adopting  a  process  of  judicial
review. It was submitted, that the scope of interference in  the  discretion
of the Governor under Article  163(2),  has  to  be  accepted  as  extremely
limited.  It was pointed out, that Article 163(2)  is  a  unique  provision.
It was acknowledged, that its ambit and scope had not  yet  been  determined
by this Court.  It was urged, that the power of  the  Governor  to  exercise
functions on his  own,  without  the  aid  and  advice  of  the  Council  of
Ministers headed by the Chief  Minister,  is  well  known.   Illustratively,
reference was  made  to  Articles  200,  239(2),  356,  371(2),  371A(1)(b),
371C(1), 371F(g), and in  addition  thereto,  the  powers  vested  with  the
Governor under Paragraph 9 of the Sixth Schedule.   It  was  further  urged,
that  there  were  other  situations  also,  wherein   discretion   to   act
independently,  has  been  conferred  on  the  Governor,  even  though   not
specifically expressed, by or  under  any  provision  of  the  Constitution.
Reference was made to the  selection  of  the  Chief  Minister  after  fresh
elections under Article 164;  the  authority  to  obtain  a  fresh  vote  of
confidence; where it appears to the Governor that  the  Chief  Minister  and
his Council of  Ministers  no  longer  enjoy  the  majority  in  the  House.
Reference was also made to the Samsher Singh case1 (paragraph 154 –  already
extracted above), wherein this Court  referred  to  obvious  situations,  in
which the Governor would act at his own.
116.   Reference  was  also  made  to  the  Madhya  Pradesh  Special  Police
Establishment case15, wherein this Court recognised  the  fact,  that  there
would  be  many  situations  where,  for  reasons  of  peril  to  democratic
principles, the Governor was liable to act at his  own,  without  subjecting
himself to the aid and advice of the  Chief  Minister  and  his  Council  of
Ministers.  It was explained, that in matters where the Governor is  of  the
view, that the advice of the Council of Ministers was likely  to  be  biased
or partisan, or where there is a conflict of interest  between  the  Council
of Ministers on the issue  under  consideration,  it  would  be  open  to  a
Governor to act at his own.  And in such cases, even if advice  is  tendered
by the Council of Ministers, the  Governor  could  legitimately  ignore  the
same.  It was pointed out, that the above position  was  reiterated  in  the
Justice R.A Mehta case16, wherein  this  Court  while  interpreting  Article
163(2) concluded, that it would be  permissible  for  the  Governor  to  act
without ministerial advice, even in the absence of an express  provision  in
the Constitution.
117.  Insofar as  the  present  controversy  is  concerned,  learned  senior
counsel  asserted,  that  Article  174  itself  vests  the  power  with  the
Governor, to summon, prorogue or dissolve the Legislative Assembly.  It  was
submitted, that a  perusal  of  Article  174  reveals,  that  there  are  no
restrictions on the powers of the  Governor,  in  the  above  matters.   The
Governor’s decision determining the place  and  time,  where  and  when  the
House would meet, according to learned counsel,  is  also  demonstrative  of
the  determination  of  the  same,  by  himself.   It  was  submitted,  that
summoning the Assembly is a part of the discretion referred  to  in  Article
163(1), where the Governor can  act  without  the  aid  and  advice  of  the
Council of Ministers.  And further that, the decision  of  the  Governor  in
the above matter is final, and  cannot  be  questioned,  because  it  is  so
mandated, under  Article  163(2).   It  was  therefore  asserted,  that  the
discretion exercised by  the  Governor  in  preponing  the  meeting  of  the
Assembly from 14.1.2016 to 16.12.2015, was fully justified  and  within  the
individual domain of the Governor.
118.  On the subject of  judicial  review,  in  respect  of  the  discretion
exercised by the Governor under Article 163(2), it was submitted, that  this
Court  in  Kesavananda  Bharati  v.  State  of  Kerala[17],  held  that  the
provisions of the Constitution cannot be amended, so as to alter  the  basic
structure of the Constitution.  It  was  acknowledged,  that  the  power  of
judicial review has been recognised as a part of the basic structure of  the
Constitution.  It was submitted, that the concept of  the  basic  structure,
is not applicable to the original provisions of the  Constitution.   It  was
emphasized,  that  Article  163(2)  is  an   original   provision   of   the
Constitution, and therefore, it cannot be tested on the  touchstone  of  the
concept of the basic structure.  It  was  pointed  out,  that  the  founding
fathers of the Constitution, desired to vest absolute  discretion  with  the
Governor, to determine whether he ought to act in his  discretion.   It  was
urged, that  the  founding  fathers  made  it  explicitly  clear,  that  the
decision of the Governor  taken  in  his  discretion  would  be  final,  and
additionally, anything done by the Governor while exercising his  discretion
under Article 163(2), would not be called in question.   It  was  submitted,
that a plain reading of the above provision, leaves no room for  any  doubt,
that  the  framers  of  the  Constitution  vested  with  the   Governor   an
unambiguous authority to exercise his discretion  under  the  provisions  of
the Constitution.  The founding fathers also desired, that  such  discretion
exercised by the Governor should be  final.   It  was  therefore  submitted,
that the very suggestion at the hands of the appellants, that the order  and
message of the Governor dated 9.12.2015, were subject  to  judicial  review,
was liable to be rejected.
119.  In order  to  demonstrate  the  uniqueness  of  the  position  of  the
Governor, learned senior counsel desired this Court to contrast Article  163
with Article  74.   It  was  pointed  out,  that  Article  74  requires  the
President, to exercise his functions in accordance with the aid  and  advice
tendered to him by the Council of Ministers (with the Prime Minister as  the
head).  And under no circumstances, in his own discretion.   It  was  urged,
that while examining the scope of functions vested  with  the  Governor,  it
needs to be visualized that Article 163(1)  postulates  situations,  wherein
the Governor is to exercise his functions, as provided for by or  under  the
Constitution, in  his  own  discretion.   It  was  highlighted,  that  under
Article 163(2), in case of a dispute, whether or not a  particular  function
could or could not be exercised by the Governor in his own  discretion,  the
Governor and the Governor alone, is mandated to take  call  on  the  matter.
And his decision on the matter,  is  final.   According  to  learned  senior
counsel,  in  the  discharge  of  functions  under  the  Constitution,   the
determination at the hands of the Governor is different  from  that  of  the
President.   The  Governor  has  clear  discretionary  powers,  whereas  the
President has none.  Furthermore, as noticed above, Article  163(2)  assigns
finality to the  determination  by  the  Governor,  as  to  whether  he  was
required by or under the Constitution to act in  his  own  discretion.   Not
only that, the said determination by the Governor “… shall not be called  in
question on the ground that he ought or ought  not  to  have  acted  in  his
discretion …”.
120.   It  was  therefore  submitted,  that  in  all  matters  where,  by  a
constitutional  provision,  the  Governor  is  required   to   discharge   a
particular function, the manner in which that function is to be  discharged,
would have to be determined by the  Governor  himself.   It  was  submitted,
that  that  could  be  the  only  legitimate  conclusion,  on  an  effective
comparison and understanding of Articles 74 and 163.  It was in the  instant
background, that learned senior counsel drew our attention to  Article  174,
which  according  to  him,  unambiguously  vests  in   the   Governor,   the
responsibility to summon the State  Legislature.   Not  only  that,  it  was
submitted, that the Governor is  also  vested  with  the  responsibility  to
determine “as  he  thinks  fit”,  when  and  where  the  House  would  meet.
Likewise, the Governor is authorized to prorogue  and  dissolve  the  House,
from time to time, as he may choose.  It was therefore  submitted,  that  in
the facts and circumstances of the present case, when the  Governor  by  his
order dated 9.12.2015, took the decision by exercising  his  discretion,  to
summon the  House  by  preponing  the  6th  session  of  the  Assembly  from
14.1.2016  (as  earlier  fixed),  to  16.12.2015.   The   above   discretion
exercised by the Governor was bound to be accepted as final, and  could  not
be called in question.  It was submitted, that judicial review of the  above
order, was clearly barred, except if it  could  be  shown,  that  the  above
discretion  was  not  exercised  by  the  Governor  bona  fide  and  on  due
consideration.  It was submitted, that the exercise  of  discretion  at  the
hands  of  the  Governor  under  Article  163(2),  was  an  area   of   non-
justiciability.  And that, it was impossible to get over the bar, except  to
the limited extent referred to hereinabove.
121.  In the above  view  of  the  matter,  for  exactly  the  same  reasons
expressed by learned counsel with reference to the  order  dated  9.12.2015,
it  was  submitted,  that  the  discretion  exercised  by  the  Governor  in
addressing the message dated  9.12.2015  under  Article  175,  was  also  in
exercise of due discretion, without any oblique motives, and to further  the
democratic process, in consonance with the provisions of  the  Constitution,
as also, the ‘Conduct of Business Rules’ (framed  under  Article  208).   It
was therefore the vehement contention of learned senior  counsel,  that  the
prayers made by the appellants against the impugned order  of  the  Governor
dated 9.12.2015, as well as, the impugned  message  of  the  Governor  dated
9.12.2015, deserved to be rejected.
The last segment of legal submissions, on behalf of the respondents:
122.  Mr. Ashok H. Desai, Senior Advocate entered appearance  last  of  all.
His representation was on behalf of respondent nos. 21 to 30.   He  assisted
the  Court   by   primarily   expounding   the   constitutional   parameters
contemplated under Articles 163  and  174.   Learned  counsel  examined  the
aforesaid provisions, to  highlight  his  understanding  of  the  scope  and
powers of the Governor.  In order to broadly demonstrate  the  functions  of
the Governor, it was submitted, that the Constitution has  vested  with  the
Governor executive, as well as, legislative functions.   It  was  submitted,
that Article 154 postulates the range of the executive power of  the  State,
accorded to  the  Governor.   He  placed  reliance  on  Article  168,  which
declares the office of  the  Governor,  to  be  a  component  of  the  State
Legislature.  It was also pointed out, that the Governor was  bestowed  with
legislative power under Article 213,  which  authorized  him  to  promulgate
Ordinances, during the period the State Legislature was not in session.   As
against the above, it was submitted,  that  all  executive  actions  of  the
State Government, are expressed in the name of the Governor,  under  Article
166.  According to learned counsel, Article 166 also requires  the  Governor
to make rules for the  convenient  transaction  of  business  of  the  State
Government,  and  for  the  allocation  of  governmental  business   amongst
Ministers.  It was also highlighted, that the Governor of a  State  has  the
power to grant pardons, reprieves, respites or remissions of  punishment  or
to suspend, remit or commute sentences  of  persons  convicted  of  offences
relating to matters to which the executive power of the State extends  under
Article 161.  It was submitted, that under  Article  174,  the  Governor  is
required to summon Houses of the State Legislature, at such time  and  place
as he thinks fit.  The Governor likewise, has the authority to prorogue  and
dissolve the Assembly.  It was pointed out,  that  in  a  State  Legislature
having both a Legislative Council and a Legislative Assembly,  the  Governor
is authorized to make rules relating  to  procedure,  with  respect  to  the
business of the House, under Article 208.  It was submitted,  that  no  Bill
can be passed by  State  Legislature(s)  to  become  law,  unless  on  being
presented to the Governor  under  Article  200,  the  Governor  accords  his
assent to the same.  It was urged, that even though  Article  163  provides,
that a Governor would exercise his functions on the  aid  and  advice  of  a
Council of Ministers with the Chief Minister  as  the  head,  yet  the  same
Article notably authorizes the Governor to carry out  certain  functions  in
his own discretion, without any aid and advice.  It was  pointed  out,  that
it was inter alia on the receipt of a report from the Governor of  a  State,
that the President may, in case of failure of the constitutional  machinery,
declare that the power of the Legislature of the State, would  be  exercised
under the authority of the Parliament.  It was  contended,  that  the  power
and position of the Governor and the contours, while interpreting the  scope
and extent of his powers and functions, should be determined  on  the  basis
of the responsibilities and the functions assigned to  him  under  different
provisions of the Constitution.
123.   It was urged by learned senior counsel, that a Governor  is  required
to discharge the functions assigned to him, keeping in mind the  true  scope
and ambit of each of the functions.  It was pointed out,  that  in  case  of
conflict  between  the  views  expressed  by  the  Union  Government  and  a
concerned State Government, the Governor must  assume  the  position  of  an
impartial/neutral umpire.  It was submitted, that  the  State  of  Arunachal
Pradesh (of which respondent no.17, was the Governor), could not be  handled
in the same manner as other States recognized by  the  Indian  Constitution.
It was submitted, that the State of Arunachal  Pradesh  is  located  in  the
north-east of India, and has one of the longest international boundaries  of
any State.  It was urged, that the State had  been  subjected  to  recurrent
insurgencies from within, as also, from outside the country.   It  was  also
pointed out, that China  which  has  a  common  border  with  the  State  of
Arunachal Pradesh, is claiming a large part of the Indian territory  falling
in the State.  It was submitted, that Article 371H  recognizes  the  special
position of the Governor of the State of Arunachal  Pradesh.   Article  371H
is extracted hereunder:
“371H.  Special  provision  with  respect  to   the   State   of   Arunachal
Pradesh.—Notwithstanding anything in this Constitution,—
(a) the Governor of Arunachal  Pradesh  shall  have  special  responsibility
with respect to law and order in the State of Arunachal Pradesh and  in  the
discharge of his functions in relation thereto, the  Governor  shall,  after
consulting the Council of Ministers, exercise his individual judgment as  to
the action to be taken:
Provided that if any question arises whether any  matter  is  or  is  not  a
matter as respects which the Governor is under this clause required  to  act
in the exercise of his individual judgment, 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 the exercise of his individual judgment:
Provided further that if the President on  receipt  of  a  report  from  the
Governor or otherwise is satisfied that it is no longer  necessary  for  the
Governor to have special responsibility with respect to  law  and  order  in
the State of Arunachal Pradesh, he may by order  direct  that  the  Governor
shall cease to have such responsibility with effect from such  date  as  may
be specified in the order;
(b) the Legislative  Assembly  of  the  State  of  Arunachal  Pradesh  shall
consist of not less than thirty members.”

Based on the aforesaid provision, it was pointed out, that the  Governor  of
the State of Arunachal Pradesh, is provided  with  special  responsibilities
with respect to law and order.  It was submitted, that the  Governor,  after
consulting  the  Council  of  Ministers,  is  authorized  to  exercise   his
individual judgment,  as  to  the  action  to  be  taken,  with  respect  to
maintaining law and order in the State.  And that, any such action taken  by
the Governor in his individual judgment, has been  assigned  the  status  of
being final and binding, so as not be called in question, on the  plea  that
he ought  or ought  not  to  have  acted,  in  exercise  of  his  individual
judgment.   It  was  however  acknowledged,  that  the   exercise   of   the
responsibility by the Governor under Article 371H would remain, so long  as,
the approval for the same continues to be accorded by the President.
124.  On the pointed interpretation of  Article  163(1),  it  was  asserted,
that a Governor would ordinarily exercise  his  functions  on  the  aid  and
advice of the Council of Ministers with the Chief Minister as the head.   It
was however pointed out, that under the very same  provision,  the  Governor
is authorised by the Constitution “to exercise his functions or any of  them
in his discretion”.  It was urged, that the constitutional powers which  the
Governor is mandated to exercise under Article 163(1), extend to  situations
provided for expressly “by or under” the  provisions  of  the  Constitution.
It was asserted, that besides the functions assigned  to  a  Governor  under
the Constitution, a Governor may be  required  to  discharge  functions  and
exercise powers, under ordinary legislative enactments.  It  was  submitted,
that the authority exercised by the Governor under  a  statutory  provision,
may or may not be required to be performed, on any aid and advice.   Relying
on the judgment in the Samsher Singh case1, it  was  urged,  that  a  seven-
Judge Bench by way of illustration indicated, a number of situations,  where
the Governor could act without any aid  and  advice.   It  was  highlighted,
that in the Samsher Singh case1 the Court  emphasized,  that  the  instances
depicted in the judgment were only  illustrative,  and  not  exhaustive.   A
relevant extract of the above judgment is reproduced hereunder:
“54.  The  provisions  of  the  Constitution  which  expressly  require  the
Governor to exercise his powers in his discretion are contained in  Articles
to which reference has been made. To illustrate, Article 239(2) states  that
where a Governor  is  appointed  an  Administrator  of  an  adjoining  Union
Territory  he  shall  exercise   his   functions   as   such   administrator
independently of his Council of Ministers. The other  Articles  which  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 means that as the Constitutional or formal head of  the  State  the
power is vested in him.  In  this  connection,  reference  may  be  made  to
Article 356 which states  that  the  Governor  can  send  a  report  to  the
President that a situation has arisen in which the government of  the  State
cannot  be  carried  on  in  accordance  with   the   provisions   of   this
Constitution.  Again  Article 200 requires  the  Governor  to  reserve   for
consideration any Bill which in his opinion  if  it  became  law,  would  so
derogate from the powers of the High  Court  as  to  endanger  the  position
which the High Court is designed to fill under the Constitution.
55. In making a report under Article 356 the Governor will be  justified  in
exercising his discretion even against the aid and advice of his Council  of
Ministers. The reason is that the failure of  the  constitutional  machinery
may  be  because  of  the  conduct  of  the  Council  of   Ministers.   This
discretionary power is given to the Governor to enable him to report to  the
President who, however, must act on the advice of his Council  of  Ministers
in all matters.  In  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 matter. The President acts  on  the  advice  of  his
Council of Ministers. In all other matters where the Governor  acts  in  his
discretion he will act  in  harmony  with  his  Council  of  Ministers.  The
Constitution does not aim at providing a parallel administration within  the
State by allowing the Governor to go against the advice of  the  Council  of
Ministers.
56. Similarly Article 200 indicates another instance where the Governor  may
act irrespective of any advice  from  the  Council  of  Ministers.  In  such
matters where the Governor is to exercise his discretion he  must  discharge
his duties to the best of his judgment. The Governor is required  to  pursue
such courses which are not detrimental to the State.
            xxx              xxx             xxx
154. We declare the law of this branch of our Constitution to  be  that  the
President and Governor, custodians of all executive and other  powers  under
various Articles, shall, by  virtue  of  these  provisions,  exercise  their
formal constitutional powers only upon and in accordance with the advice  of
their Ministers save in a few  well-known  exceptional  situations.  Without
being dogmatic or exhaustive, these situations relate to (a) the  choice  of
Prime Minister (Chief Minister), restricted though this  choice  is  by  the
paramount consideration that he should command a majority in the House;  (b)
the dismissal of a Government which has lost its majority in the House,  but
refuses to quit office; (c) the dissolution of the House where an appeal  to
the country is necessitous, although in this area the Head of  State  should
avoid getting involved  in  politics  and  must  be  advised  by  his  Prime
Minister (Chief Minister) who will eventually take  the  responsibility  for
the step. We do not examine in  detail  the  constitutional  proprieties  in
these predicaments except to utter the caution that  even  here  the  action
must be compelled by the peril to democracy and the appeal to the  House  or
to the country must become blatantly obligatory. We have no  doubt  that  de
Smith's statement regarding royal assent holds good for  the  President  and
Governor in India:
Refusal of the  royal  assent  on  the  ground  that  the  Monarch  strongly
disapproved  of  a  Bill  or  that  it  was  intensely  controversial  would
nevertheless be  unconstitutional.  The  only  circumstances  in  which  the
withholding of the royal  assent  might  be  justifiable  would  be  if  the
Government  itself  were  to  advise  such  a  course—a  highly   improbable
contingency—or possibly if it was notorious that a Bill had been  passed  in
disregard to mandatory procedural requirements; but since the Government  in
the later situation would be of the opinion that  the  deviation  would  not
affect the validity of the measure once it had been  assented  to,  prudence
would suggest the giving of assent.”

Reliance was also  placed  on  State  of  Maharashtra  v.  Ramdas  Shrinivas
Nayak[18], and  our  attention  was  drawn  to  the  following  observations
recorded therein:
“10. We may add, there is nothing before us to think that any  such  mistake
occurred, nor is there any  ground  taken  in  the  petition  for  grant  of
special leave that the learned Judges proceeded on a mistaken view that  the
learned counsel had made a concession that there might arise  circumstances,
under which the Governor in granting sanction to prosecute a  minister  must
act in his  own  discretion  and  not  on  the  advice  of  the  Council  of
Ministers. The statement in the judgment that such a concession was made  is
conclusive and, if we may say so, the concession was rightly  made.  In  the
facts and circumstances of the present case, we have no doubt  in  our  mind
that when there is to be a prosecution of the Chief Minister,  the  Governor
would, while determining whether sanction for  such  prosecution  should  be
granted or not under Section 6 of the Prevention of  Corruption  Act,  as  a
matter of propriety, necessarily act in his own discretion and  not  on  the
advice of the Council of Ministers.”

Our  attention  was  also  drawn  to  the  Madhya  Pradesh  Special   Police
Establishment case15, where this Court held as under:
“12. …..Thus, as rightly pointed out by Mr. Sorabjee, a seven-  Judge  Bench
of this Court has already held that the normal rule  is  that  the  Governor
acts  on  the  aid  and  advice  of  the  Council  of  Ministers   and   not
independently or contrary to it. But there are exceptions  under  which  the
Governor can act in his own discretion. Some of the exceptions  are  as  set
out hereinabove. It is, however, clarified that the exceptions mentioned  in
the judgment are not exhaustive. It is also recognized that the  concept  of
the Governor acting in his discretion or exercising independent judgment  is
not  alien  to  the  Constitution.  It  is  recognized  that  there  may  be
situations where by reason of peril to democracy  or  democratic  principles
an action may be  compelled  which  from  its  nature  is  not  amenable  to
Ministerial advice. Such a situation may be where bias  is  inherent  and/or
manifest in the advice of the Council of Ministers.
      xxx        xxx         xxx
19.   Article 163 has been extracted above.  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 a 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.”

Learned counsel also invited the Court’s attention to the conclusions  drawn
by this Court in the Justice R.A. Mehta case16, wherefrom he  laid  emphasis
on the following observations
“37. In M.P. Special Police Establishment v. State of  M.P.,  (2004)  8  SCC
788, the question that arose was  whether,  for  the  purpose  of  grant  of
sanction  for  the  prosecution  of  Ministers,  for  offences   under   the
Prevention of Corruption Act and/or, the Penal  Code,  the  Governor,  while
granting such sanction, could exercise his own discretion, or  act  contrary
to the advice rendered to him by the Council of  Ministers.  The  Court,  in
this regard, first considered  the  object  and  purpose  of  the  statutory
provisions, which are aimed at achieving the prevention and  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 with respect to the same, a large number of earlier  judgments
of this Court, including Samsher Singh v. State of Punjab, (1974) 2 SCC  831
and State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2  SCC  463,  and
thereafter, came to the conclusion that, in a matter related  to  the  grant
of sanction required to prosecute a  public  functionary,  the  Governor  is
usually required to act in accordance with the aid and  advice  rendered  to
him by the Council of Ministers, and not upon his own  discretion.  However,
an exception may arise while considering the grant of sanction  required  to
prosecute  the  Chief  Minister,  or  a  Minister,  where  as  a  matter  of
propriety, the Governor may have to act upon  his  own  discretion.  Similar
would be the situation in a case where, the Council  of  Ministers  disables
or disentitles itself from providing such aid and advice. Such a  conclusion
by the Court, was found to be necessary, for the reason that the  facts  and
circumstances  of  a  case  involving  any  of   the   aforementioned   fact
situations, may indicate the possibility of bias on the part  of  the  Chief
Minister, or the Council  of  Ministers.   This  Court  carved  out  certain
exceptions to the said provision. For instance, where bias  is  inherent  or
apparent, or, where the decision of  the  Council  of  Ministers  is  wholly
irrational, or, where the Council of Ministers, because of  some  incapacity
or other situation, is disentitled from giving such  advice,  or,  where  it
refrains from doing so as matter of propriety, or in the case of a  complete
break down of democracy.
38.   Article 163(2) of  the  Constitution  provides  that   it   would   be
permissible for the Governor to act without ministerial  advice  in  certain
other situations, depending upon  the  circumstances  therein,  even  though
they may not specifically be mentioned in the Constitution as  discretionary
functions e.g. the exercise  of  power  under  Article 356(1),  as  no  such
advice will be available from the Council of Ministers, who are  responsible
for the breakdown of constitutional machinery, or  where  one  Ministry  has
resigned, and the other alternative Ministry  cannot  be  formed.  Moreover,
clause 2 of Article 163 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.  There  may
also be circumstances where, there are matters, with respect  to  which  the
Constitution does not specifically  require  the  Governor  to  act  in  his
discretion, but the Governor, despite this, may be fully  justified  to  act
so e.g. the Council of Ministers may  advise  the  Governor  to  dissolve  a
House, which may be detrimental to the interests  of  the  nation.  In  such
circumstances, the Governor would be justified in  refusing  to  accept  the
advice rendered to him, and  act  in  his  discretion.  There  may  even  be
circumstances where ministerial advice is not available  at  all,  i.e.  the
decision regarding the choice of Chief Minister under Article 164(1),  which
involves choosing a Chief Minister after a fresh election, or in  the  event
of the death or resignation of the  Chief  Minister,  or  dismissal  of  the
Chief Minister who loses majority 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 Ministers, where some other body has been  referred
for the purpose of consultation i.e. Article 192(2) as regards decisions  on
questions  related  to  the  disqualification  of  Members  of   the   State
Legislature.”

Last of all, learned counsel placed reliance on the judgment of  this  Court
in Rajendra Singh  Verma  v.  Lt.  Governor  (NCT  of  Delhi)[19],  and  our
attention was invited to the following observations made therein:
“135. Thus, it is fairly well settled by  a  catena  of  decisions  of  this
Court that in the matter of compulsory retirement of a Judicial Officer  the
Governor cannot act on the aid and the advice of Council  of  Ministers  but
has to act only on the recommendation of the  High  Court.  Though  the  Lt.
Governor is a party to these appeals, he has not raised any  plea  that  the
recommendation made by the Delhi High Court was not binding on  him  and  he
could have acted in the matter only on the aid and advice of his Council  of
Ministers. Thus the order of the  Lt.  Governor  compulsorily  retiring  the
appellants without seeking aid and advice of his  Council  of  Ministers  is
neither ultra vires nor illegal and is rightly sustained by the High  Court.
The Governor could not have passed any  order  on  the  aid  and  advice  of
Council of Ministers in  this  case.  The  advice  should  be  of  no  other
authority except that of the High Court in the matter of judicial  officers.
This is the plain implication of Article 235.”

Based on the declared position of law by this Court,  in  the  judgments  on
which reliance was placed by learned counsel, it was submitted,  that  where
constitutional   issues   arise,   because   of    an    unacceptable    and
constitutionally impermissible conduct of the Council of  Ministers,  or  in
case of a disputation relating to the choice of the Chief Minister, or  with
reference to the resolution of the House, or on account  of  the  democratic
process being undermined, it was open to a  Governor  to  act  on  his  own,
without  any  aid  and  advice.   It  was   urged,   that   the   individual
determination of  the  Governor  would  extend  to  issues  where  propriety
requires him to discharge his  functions  in  his  own  discretion,  as  for
instance, sanction of prosecution of a Chief Minister or  a  Member  of  the
Council of Ministers.
125.  It was urged, that the sequence  of  facts  narrated  by  the  learned
counsel representing the respondents  has  highlighted  a  situation,  where
MLAs belonging to the INC did not support their own Chief Minister  –  Nabam
Tuki.  It was also highlighted, that the Speaker – Nabam  Rebia,  who  ought
to have been functioning as a neutral  arbiter  in  the  activities  of  the
House, was demonstrating a  partisan  attitude  by  siding  with  the  Chief
Minister – Nabam Tuki.  And in order to  support  the  Chief  Minister,  the
Speaker had endeavoured to misuse the  power  vested  with  him,  under  the
Tenth Schedule.  It was therefore submitted, that the action  taken  by  the
Governor,  through  his  order  dated  9.12.2015  and  his   message   dated
9.12.2015, was surely aimed at restoring balance in the democratic  process,
and as such, could not have been performed on the  aid  and  advice  of  the
Council of Ministers with the Chief Minister as the head.   It  was  pointed
out, that not only the Council of Ministers  and  the  Chief  Minister,  but
also the Speaker were misusing the constitutional powers vested  with  them,
to derail the democratic process, and in the facts and circumstances of  the
case, the Governor was well within his rights in exercise of the  discretion
vested with him under Article 163, to endeavour to preserve  the  democratic
process without himself interfering therewith.
126.  Learned senior counsel then  placed  reliance  on  the  first,  third,
fourth,  fifth  and  sixth  sequences  of  facts,  to   contend   that   the
constitutional turmoil which prevailed in the  State  of  Arunachal  Pradesh
was of a nature, wherein it was futile to seek the aid  and  advice  of  the
Council of Ministers with the Chief Minister as the head.  In fact,  it  was
his  pointed  contention,  that  the  situation  which  prevailed   in   the
Legislative Assembly of the State  of  Arunachal  Pradesh,  had  erupted  on
account of the complicity  between  the  Chief  Minister  and  the  Speaker,
neither of whom enjoyed the confidence of  the  House.   It  was  submitted,
that the democratic process was in peril.  It was urged, that  the  Governor
in compliance with the oath subscribed to by him, at the time of  assumption
of office under Article 159, had passed the order dated 9.12.2015, as  also,
issued  the  message  dated  9.12.2015,  which  were  aimed  at  preserving,
protecting and defending the Constitution, and the laws.  It was  submitted,
that there was no question of seeking any aid and advice,  for  the  purpose
of preponing the 6th session of the  Assembly,  in  exercise  of  the  power
vested with the Governor under Article 174.   It  was  submitted,  that  his
exercise of discretion to prepone the  6th  session  of  the  Assembly  from
14.1.2016 to 14.12.2015, was in consonance with the discretion  vested  with
him under Article 163(2).  In order to justify his above contention, it  was
submitted, that there was no cause for the Governor  to  consult  the  Chief
Minister – Nabam Tuki, who had lost support of the  majority  of  the  MLAs.
It was asserted, that in the same manner, as the  Governor  can  summon  the
House for a floor test, to determine whether or not  the  ruling  party  had
support of the majority, so also, the Governor was well within  his  rights,
to determine whether  or  not  the  Speaker,  continued  to  enjoy  majority
support.  It  was  submitted,  that  the  right  of  a  Speaker  to  conduct
proceedings against MLAs (who had been proceeded  against  under  the  Tenth
Schedule), can be considered to be constitutionally justified, only  if  the
Speaker enjoys majority support.  Once the Governor entertained the  belief,
that the Speaker – Nabam Rebia, had lost support  of  the  majority  of  the
MLAs, he could not be permitted  to  discharge  the  onerous  constitutional
responsibility, under the Tenth Schedule.  It was urged, that it was in  the
aforestated background,  that  the  Governor  had  in  his  own  discretion,
summoned the Assembly  under  Article  174.   It  was  submitted,  that  the
instant situation is comparable to the other  circumstances,  wherein,  even
though the Governor has not been so expressly authorized  (to  deal  with  a
matter in his own discretion), not doing so, would amount to  defeating  the
constitutional purpose sought to be achieved.  In  the  above  view  of  the
matter, it was reiterated, that in the backdrop  of  the  vast  and  onerous
functions vested with the Governor, it cannot be doubted, that the  Governor
has the power to summon the  Assembly,  in  exercise  of  his  discretionary
powers,  specially  in  the  ongoing  exceptional  circumstances,  and   the
sensitivity of the State of Arunachal Pradesh.
127.  Even though  we  have  not  highlighted  and  repeated  the  different
sequence of facts relied upon by the learned senior counsel, yet it  may  be
mentioned, that  the  Governor  was  allegedly  in  possession  of  material
indicating that the Speaker was under a serious cloud, and did  not  command
the confidence of the  majority  of  the  MLAs.   Additionally,  there  were
serious allegations  of  complicity  between  the  Chief  Minister  and  the
Speaker.  In the  above  factual  situation,  it  was  submitted,  that  the
Governor was fully justified in not consulting the Speaker and/or the  Chief
Minister (or the Council of Ministers).  It was  asserted,  that  consulting
the Speaker was out of question, as the Speaker cannot be  a  judge  in  his
own cause.  Insofar as consultation with the Chief  Minister  is  concerned,
it was submitted, that there was sufficient material before the Governor  to
suggest, that the Chief  Minister  and  the  Speaker  were  partners  in  an
illegal conspiracy, to subvert the democratic process in the State.  In  the
above view of the matter, it was reiterated, that  the  Governor  was  fully
vindicated in having exercised his independent judgment, in  not  consulting
the Chief Minister.  It was also pointed out, that  the  complicity  between
the Chief Minister and the Speaker stands established, from  the  fact  that
the Chief Minister – Nabam Tuki, and the Speaker –  Nabam  Rebia  are  first
cousins.  Therefore, the principle of conflict of interest/bias  is  clearly
applicable even in the case on hand.  In the above view of  the  matter,  it
was urged, that an expeditious disposal of the notice of resolution for  the
removal of the Speaker – Nabam Rebia was fully justified, having  regard  to
the fact that a number of legislators forming more than 1/5th of  the  MLAs,
had expressed their want of confidence in the Speaker.
128.   Besides  the  submissions  noticed  hereinabove,  it  was  also   the
contention of Mr. Ashok H. Desai, learned senior counsel, that the  exercise
of discretion by the Governor was final and binding.  The Court’s  attention
was invited to Article 163(2) which mandates, that  “…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.”.   While  it  was
acknowledged, that there is  no  bar  to  judicial  review,  learned  senior
counsel  was  emphatic,  that  judicial  review  was  permissible  only   in
situations where the Governor had  exercised  his  discretion  in  a  wanton
manner.  It was submitted, that the exercise of power by  the  Governor  can
legitimately be placed in the following categories.  Firstly,  the  exercise
of executive powers in consonance with the provisions of  the  Constitution,
by or under the order of the  Governor,  wherein  full  judicial  review  is
available.  Secondly, orders passed by the Governor on the  aid  and  advice
of the Council of Ministers headed by the Chief Minister, wherein also  full
judicial review is available. Thirdly,  orders  like  the  grant  of  pardon
under Article 161, and orders passed by the  President  based  on  a  report
submitted by the  Governor  under  Article  356,  wherein  limited  judicial
review is available. And fourthly, where the Governor acts without  the  aid
and advice of the Council of Ministers headed by the Chief Minister, in  his
own discretion.   It  was  submitted,  that  in  the  fourth  situation,  no
judicial review is permissible, as is  explicit  from  a  plain  reading  of
Article 163(2).
129.  To support his aforesaid contention, with reference  to  assailability
of the order of the Governor dated 9.12.2015, as well  as,  the  message  of
the Governor  dated  9.12.2015,  learned  counsel  placed  reliance  on  the
Pratapsing Raojirao Rane case12, and invited the Court’s  attention  to  the
following:
“43. While dealing with Full Bench judgment of the  Madras  High  Court  the
noted Constitutional Expert H.M. Seervai in "Constitutional Law  of  India",
4th Edition, Volume I, at page 2070, Note 18.79 has  opined  that  the  view
taken by Full Bench that in respect of his official acts,  the  Governor  is
not answerable to the Court even in respect of a charge  of  mala  fides  is
correct.
44. We concur with this position. We also  agree  with  the  learned  author
that in such eventuality Governor cannot be said to be under  duty  to  deal
with allegations of mala fides in  order  to  assist  the  Court,  which  in
effect would mean that he is answerable to the Court.
45. The Governor in terms of Article 156 of the  Constitution  holds  office
during the pleasure of the President. Any mala fide actions of the  Governor
may,  therefore,  conceivably  be  gone  into  by  the  President.   Another
effective check is that the Ministry will fall if  it  fails  to  command  a
majority in the Legislature Assembly.
46. Thus, the position in law is  clear  that  the  Governor,  while  taking
decisions in his sole discretion, enjoys immunity under Article 361 and  the
discretion exercised by him in the performance of such  functions  is  final
in terms of Article 163(2). The position insofar as  the  dismissal  of  the
Chief Minister is concerned would be the same, since when the Governor  acts
in such a matter, he acts in his sole discretion. In  both  the  situations,
namely, the appointment of the Chief  Minister  and  the  dismissal  of  the
Chief Minister, the Governor is the best  judge  of  the  situation  and  he
alone is in possession of the  relevant  information  and  material  on  the
basis of which he acts. The result, therefore, would be  that  such  actions
cannot be subjected to judicial scrutiny at all.”

And on Mahabir Prasad Sharma v. Prafulla Chandra  Ghose[20],  wherefrom  the
Court’s attention was drawn to the following conclusions:
“44. There are other  provisions  in  the  Constitution  which  empower  the
Governor to make an appointment to an office.  As  for  example,  the  power
under Article 165(1) to appoint a person  as  the  Advocate-General  of  the
State. This  power,  however,  has  been  conditioned  by  the  restrictions
imposed thereby, namely, that a person can be appointed Advocate-General  if
he is qualified to be a  Judge  of  a  High  Court.  If  this  condition  is
violated, and a person is appointed who is not qualified to be a Judge of  a
High  Court,  the  appointment  can  certainly   be   questioned   in   writ
proceedings, as was done in the writ  petition  filed  in  the  Nagpur  High
Court. Then again under Article  310(1) various  public  servants  mentioned
therein  hold  office  during  the  pleasure  of   the   President   and   a
Governor. Article  310(1) opens  with  the  words:  "except   as   expressly
provided by this Constitution." Article 311 provides for dismissal,  removal
or reduction in rank of person employed in civil capacities under the  Union
or  the  States,  and  the  pleasure  of  the  President  or  the   Governor
contemplated by Article 310(1) is conditioned by the limitations  prescribed
by Article 311 of the Constitution. If the conditions  and  the  limitations
created by Article 311 are violated in dismissing, removing or  reducing  in
rank a servant of the Union or a State, the order of the  President  or  the
Governor can be questioned in appropriate proceedings. But there is no  such
limitation  or  condition  to  the  pleasure  of  the  Governor   prescribed
by Article 164(1) and it must, therefore, be held  that  the  right  of  the
Governor to withdraw the pleasure, during which the Ministers  hold  office,
is absolute and unrestricted. Furthermore having regard  to  the  provisions
in Clause (2) of Article 163 the exercise of the discretion by the  Governor
in  withdrawing  the  pleasure  cannot  be  called  in  question   in   this
proceedings.”

Reliance was also placed on Constitutional Law  of  India  (Fourth  Edition)
Volume II, authored by H.M. Seervai, and the Court’s attention was drawn  to
paragraph 18.78 on page 2070 thereof, which is extracted below:
“18.78      As to Brief Note (A), it is submitted that after the Sup.  Ct.’s
decision in Samsher Singh’s  Case  the  proposition  that  the  Governor  is
required to act in his discretion only by express  provision  is  no  longer
good law, for, as we have seen, both the judgments in that  case  held  that
in some cases the Governor had power to act in his discretion  as  a  matter
of necessary implication.  Again, the  statement  that  the  words  “in  his
discretion” have the technical meaning given to them  under  the  G.I.  Act,
35, is also not good law, for the Sup. Ct.  gave  those  words  their  plain
natural meaning, namely, that where the Governor acts  “in  his  discretion”
he is not obliged to follow the advice  given  to  him  by  the  Council  of
Ministers.  The Full Bench did not give  weight  to  the  language  of  Art.
163(2) which postulates that a question might arise whether by or under  the
Constitution the Governor is required to act in  his  discretion;  and  Art.
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.  It is submitted that in view of  Art.  163(2)
the court had no jurisdiction to decide whether the Governor ought or  ought
not to act in his discretion as rightly held by the Calcutta High  Court  in
M.P. Sharma’s Case (1968) 72 C.W.N.  328.   It  was  unfortunate  that  this
decision was not cited to, or considered  by,  the  Full  Bench.   Secondly,
when the petition raised a  question  whether  the  Governor  acted  on  the
advice of his Chief Minister and whether such  advice  was  misleading,  the
petition raised questions which the court could not  inquire  into,  because
Art. 163(3) provides that “The question whether any, and if so what,  advice
was tendered by Ministers to the Governor shall not be inquired into in  any
court”.

Based on the two judgments referred to hereinabove,  as  also,  the  opinion
expressed  by  the  jurist,  it  was  asserted,  that  in  the   facts   and
circumstances of the present controversy, since it could  not  be  concluded
or inferred, that the Governor  had  acted  in  a  wanton  manner,  it  must
necessarily be held, that there was no scope to invoke judicial  review,  as
against the order of the Governor dated 9.12.2015, as also, the  message  of
the Governor dated 9.12.2015.
The consideration and the conclusions:

                                     I .
                       Article 163 of the Constitution

163.  “Council of Ministers to aid and advise Governor.-(1) There  shall  be
a Council of Ministers with the Chief  Minister  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) If any question arises whether any matter is  or  is  not  a  matter  as
respects which 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 whether any,  and  if  so  what,  advice  was  tendered  by
Ministers to the Governor shall not be inquired into in any court.”

130.  To demonstrate, that the order  and  message  of  the  Governor  dated
9.12.2015 were well  within  the  domain  and  authority  of  the  Governor,
learned counsel for the respondents  were  emphatic  in  pointing  out,  the
distinction between Article 74 and Article 163.  It was  pointed  out,  that
in consonance with Article 74  the  Council  of  Ministers  with  the  Prime
Minister as the head, is to aid and advise the  President.   And  that,  the
President is to exercise all his functions in  consonance  with  the  advice
tendered  to  him.   It  was  highlighted,  that  no   discretionary   power
whatsoever has been conferred with the President, to enable him to  exercise
his functions in his own discretion.  At best,  the  President  can  require
the Council of Ministers to reconsider the advice tendered to him.   And  on
such reconsideration, if the position is reiterated, the President is  bound
to act in consonance with  the  desire  of  the  Council  of  Ministers.  In
contrast to the above, even though Article 163 similarly provides, that  the
Governor of a State is to exercise his functions in consonance with the  aid
and advice tendered to him by  the  Council  of  Ministers  with  the  Chief
Minister as the head, yet Article 163(1) confers  discretionary  power  with
the  Governor,  when  it  is  so  expressly  mandated  by   or   under   the
Constitution. There can therefore be no doubt, that  to  a  limited  extent,
Article 163(1) authorizes the Governor to act in his  own  discretion.   And
in that sense, there is a clear distinction between the  power  vested  with
the President, and the power vested with the Governor.
131.   According  to  the  respondents,  the  scope   and   ambit   of   the
discretionary power  of  the  Governor,  must  necessarily  be  traced  from
Article 163(2).  It was urged,  that  even  the  simple  dictionary  meaning
assigned to the language adopted in Article 163(2) would  reveal,  that  the
above provision allows the Governor to choose matters on which he  needs  to
exercise his own discretion.  Such choice made by  the  Governor,  according
to learned counsel for the respondents, has been accorded finality,  and  is
beyond the  purview  of  being  questioned.   It  was  clarified,  that  the
validity of an  action  taken  by  the  Governor  in  exercise  of  his  own
discretion, has been assigned a  constitutional  protection.   Inasmuch  as,
the same cannot be called in question, even by way of  judicial  review,  on
the ground whether the Governor ought or ought not  to  have  acted  in  his
discretion.  Based on the interpretation emerging from a  plain  reading  of
Article 163, it was asserted on behalf of the respondents,  that  the  order
of the Governor dated 9.12.2015, as well as, his  message  dated  9.12.2015,
were actions taken by the Governor in his own independent discretion,  under
Article 163(2).  It was accordingly urged, that the  same  enjoyed  absolute
constitutional immunity/protection, which placed the said order and  message
beyond the scope of being questioned.
132.  It was also submitted on behalf of the  respondents,  that  there  are
judicially recognized situations, wherein the Governor can function  without
any aid and advice.  These were illustratively referred to, by adverting  to
Articles 200, 239(2), 356,  371(2),  371A(1)(b),  371C(1)  and  371F(g),  as
also, the power vested with the Governor under  Paragraph  9  of  the  Sixth
Schedule.  It was also pointed out, that contrary to the  plain  reading  of
Article 163(1), namely, that the Governor can exercise his functions in  his
own  discretion,  only  in  situations  provided  for  “by  or  under”   the
Constitution, this Court has held, that in certain situations  the  Governor
can still act in his own  discretion  (without  any  aid  or  advice),  even
though the Governor has not been so expressly required to  act  in  his  own
discretion.  Insofar as the  situations  where  there  is  no  such  express
provision, and yet the Governor has been held to be authorized  to  exercise
the same  in  his  own  discretion,  reference  was  made  to  Article  164,
whereunder the Governor is required to choose the person to be sworn as  the
Chief Minister, after fresh  elections  are  held.  Similarly,  wherein  the
Government in power, appears to have lost its majority in  the  Legislature.
The Governor can require, the party holding the reins of Government, or  the
party desirous to form Government, to demonstrate their majority by  way  of
a floor test.  Reference was also made to situations  wherein,  there  is  a
conflict of interest between the Council of Ministers on the one  hand,  and
the issue under consideration on the other.   In  such  matters  also,  even
though there is no express provision allowing the Governor  to  act  in  his
own discretion,  this  Court  has  repeatedly  declared  the  right  of  the
Governor, to act on his own, without any aid and advice.
133.  Based on the declared position of law  by  this  Court,  it  was  also
submitted on behalf of the respondents,  that  where  constitutional  issues
arise,  because  of  an  unacceptable  and  constitutionally   impermissible
conduct of the Government, or in cases of  a  disputation  relating  to  the
choice  of  the  Chief  Minister,  or  with  reference  to  an  undemocratic
resolution of the House, or on  account  of  the  democratic  process  being
otherwise undermined, it is open to the Governor to act on his own,  without
any aid and advice.  It was urged, that the individual determination of  the
Governor, would additionally extend to  issues,  where  propriety  required,
that the Governor should discharge his functions in his own discretion.
134.  Insofar as the question  of  judicial  review  is  concerned,  it  was
submitted, that this Court in the Kesavananda Bharati case17 had  recognized
judicial review, as a part of the ‘basic structure’ of the Constitution.  It
was also acknowledged, that a series of judgments  rendered  by  this  Court
thereafter, have reiterated the above position.  It was  however  submitted,
that a challenge can only be raised under the ‘basic structure doctrine’  to
assail an amended provision of the Constitution.   It  was  contended,  that
the aforesaid doctrine is not applicable to the provisions of  the  original
Constitution.  It was emphasized,  that  Article  163(2),  as  it  presently
exists, is in the same format in which it was originally expressed,  by  the
framers of the Constitution.  It was therefore asserted, that  if  and  when
the Governor exercises his constitutional functions in his  own  discretion,
the  same  are  protected  through  a  constitutional  immunity  (postulated
through, sub-article (2) of Article 163), even  from  judicial  review.   In
view of the above, it was contended, that this Court should not entertain  a
challenge raised by the appellants, to  the  order  of  the  Governor  dated
9.12.2015, and his message dated 9.12.2015, since  both  were  decisions  of
the Governor taken under Article 163(2), in his own discretion, without  any
aid and advice.
135.  Even though the position  expressed  in  the  preceding  paragraph  is
clear and explicit, yet learned counsel  representing  the  respondents,  at
his own acceded to one  exception  to  the  proposition  canvassed  by  him,
namely, that a determination at  the  hands  of  the  Governor  in  his  own
discretion, would be subject to judicial review, when it can be  shown  that
the discretion exercised by the Governor was not bona fide, or  not  on  due
consideration.   It  was  illustratively  submitted,  that  the   Governor’s
exercise of discretion, would be open to challenge, where it  can  be  shown
to be perverse, or capricious,  or  fallacious,  or  extraneous,  or  for  a
motivated consideration, and in  situations  of  the  like  nature.   Stated
simply, it is conceded, that an order passed by the Governor in exercise  of
his  own  discretion  (without  any  aid  or  advice)  can  be  successfully
assailed, if it can be shown,  that  in  the  discretion  exercised  by  the
Governor, he had acted wantonly, whimsically or arbitrarily.
136.  The aforestated submissions at the hands of the  learned  counsel  for
the respondents, though extremely attractive, and seemingly emerging from  a
plain reading of Article 163(2), cannot be accepted.  The  reasons  for  our
determination are being narrated in the following paragraphs.
137.  First of all, it is extremely essential to understand, the  nature  of
powers and the functions of  the  Governor,  under  the  provisions  of  the
Constitution.  Insofar as the instant aspect of the matter is concerned,  it
is apparent that the  Governor  has  been  assigned  functions  and  powers,
concerning the executive and the legislative  affairs  of  the  State.   The
executive functioning of the States is provided for under  Part  VI  Chapter
II of the Constitution, which includes Articles 153  to  167.   Article  154
mandates, that  the  executive  power  of  the  State  is  vested  with  the
Governor, and is to be exercised by him either directly or through  officers
subordinate to him “in accordance  with  this  Constitution”.   Article  163
further warrants, that the Governor would exercise  his  functions,  on  the
aid and advice of the Council of Ministers with the Chief  Minister  as  the
head.  The above edict is not applicable, in situations where  the  Governor
is expressly  required  to  exercise  his  functions,  “…by  or  under  this
Constitution…”, “… in his  discretion...”.   The  question  that  will  need
determination at our hands is, whether the  underlying  cardinal  principle,
with reference to the discretionary power of the Governor, is to  be  traced
from Article 163(1) or from Article 163(2).  Whilst it  was  the  contention
of the learned counsel for the appellants, that the  same  is  expressed  in
sub-article (1) of Article 163, the contention on behalf of the  respondents
was, that the amplitude of  the  discretionary  power  of  the  Governor  is
evinced and manifested in sub-article (2) of Article 163.  Undoubtedly,  all
executive actions of the Government of a State are expressed in the name  of
the Governor, under Article 166.  That, however, does not per se add to  the
functions and powers of the Governor.  It is also necessary  to  appreciate,
that in the discharge of executive functions, the Governor of  a  State  has
the  power  to  grant  pardons,  reprieves,  respites   or   remissions   of
punishments or to suspend, remit or commute sentences (under  Article  161).
The Governor’s power under Article 161, is  undisputedly  exercised  on  the
aid and advice of the Chief Minister and  his  Council  of  Ministers.   The
Governor has  power  to  frame  rules  for  the  convenient  transaction  of
executive business of  the  Government,  under  Article  166.   The  instant
responsibility is also discharged, on aid and advice.  All  in  all,  it  is
apparent, that the Governor is not assigned  any  significant  role  in  the
executive functioning of the State.  We would also endeavour to examine  the
duties and responsibilities of the Governor in the  legislative  functioning
of a State.  Details with reference to the same are  found  incorporated  in
Part VI Chapter III of the Constitution,  which  includes  Articles  168  to
212.  Even though Article 168 postulates, that the legislature  of  a  State
would comprise of the  Governor,  yet  the  Governor  is  not  assigned  any
legislative  responsibility  in  any  House(s)  of  the  State  Legislature,
irrespective of whether it is the legislative process relating  to  Ordinary
Bills or Money Bills.  Article 158  (dealing  with  the  conditions  of  the
Governor’s office) provides, that the “… Governor shall not be a  member  of
either House of Parliament or of a House of the  Legislature  of  any  State
specified in the First Schedule …”. Insofar as the  legislative  process  is
concerned, the only function vested with the Governor is  expressed  through
Article 200 which inter alia provides, that  a  Bill  passed  by  the  State
Legislature, is to be presented to the Governor for  his  assent.   And  its
ancillary provision, namely, Article 201 wherein a Bill passed by the  State
Legislature and presented to the Governor, may be reserved by  the  Governor
for consideration  by  the  President.   The  only  exception  to  the  non-
participation of the Governor in legislative functions, is postulated  under
Article 213 (contained in Part VI Chapter IV  of  the  Constitution),  which
apparently vests with the Governor, some legislative  power.   The  Governor
under Article 213 can promulgate Ordinances,  during  the  period  when  the
House(s) of the State Legislature, is/are not in session.  This function  is
exercised by the Governor, undisputedly,  on  the  aid  and  advice  of  the
Council of Ministers with the Chief Minister as the head.  The  Governor  is
also required to summon the House or Houses  of  State  Legislature,  or  to
prorogue or dissolve them under Article  174.   We  shall  exclusively  deal
with the connotations of  the  instant  responsibility  entrusted  with  the
Governor, immediately  after  drawing  our  conclusions  with  reference  to
Article 163. Articles 178 to  187  deal  with  the  officers  of  the  State
Legislature, including the Speaker and the Deputy Speaker, as well  as,  the
secretariat of the  State  Legislature.   The  above  Articles  are  on  the
subject of appointment and removal of the Speaker and the Deputy Speaker  of
the Legislative Assembly, as also, the Chairman and Deputy Chairman  of  the
Legislative Council, as well as, other ancillary  matters.   Whilst  Article
179 provides for vacation, resignation and removal of the Speaker  (and  the
Deputy Speaker) of the  Legislative  Assembly.   Article  183  provides  for
vacation, resignation and removal of the Chairman (and the Deputy  Chairman)
of the Legislative Council.  In neither of the above Articles, the  Governor
has any assigned role.  The only responsibility allocated  to  the  Governor
under Article 208, is of making rules as to the procedure  with  respect  to
communications between the two Houses of State Legislature.  All in all,  it
is apparent, that the Governor is not assigned any significant role even  in
the legislative functioning of the State.
138.  The above position, leaves no room for any doubt,  that  the  Governor
cannot be seen to have such powers and functions, as would assign to  him  a
dominating position, over the State executive  and  the  State  legislature.
The interpretation placed on Article 163(2), on behalf of  the  respondents,
has just that effect, because  of  the  following  contentions  advanced  on
behalf of the respondents.  Firstly, whenever a question arises, whether  in
discharging a particular function, the Governor can or  cannot  act  in  his
own discretion.   According  to  the  respondents,  the  discretion  of  the
Governor, on the above question, is final.  Secondly,  since  the  provision
itself postulates, that “ … 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…”,  according  to  the  respondents,  makes   the
Governor’s orders based on his own discretion, immune from judicial  review.
 Accepting the above position,  will  convert  the  Governor  into  an  all-
pervading super-constitutional authority.  This position is  not  acceptable
because an examination of the executive and  legislative  functions  of  the
Governor, from  the  surrounding  provisions  of  the  Constitution  clearly
brings out, that the Governor has not been  assigned  any  significant  role
either in the executive or the legislative functioning of  the  State.   The
position adopted on behalf of the appellants,  on  the  other  hand,  augurs
well in  an  overall  harmonious  construction  of  the  provisions  of  the
Constitution.  Even on a cursory examination of the relevant  provisions  of
the Constitution, we are inclined  to  accept  the  contention  advanced  on
behalf of the appellants.
139.  In our considered view, a clear answer to the query raised above,  can
inter alia emerge from the Constituent Assembly debates  with  reference  to
draft Article 143, which eventually came to be renumbered as Article 163  in
the Constitution.  It would be relevant to record,  that  from  the  queries
raised by H.V. Kamath, T.T. Krishnamachari,  Alladi Krishnaswami Ayyar,  and
from the response to the same by Dr.  B.R.  Ambedkar,  it  clearly  emerges,
that the general principle with reference to the scope  and  extent  of  the
discretionary power  of  the  Governor,  is  provided  for  through  Article
163(1).  It also becomes apparent from Article 163(1),  which  provides  for
the principle of ministerial  responsibility.   The  crucial  position  that
gets clarified from a perusal of the Constituent  Assembly  debates,  arises
from the  answer  to  the  query,  whether  the  Governor  should  have  any
discretionary power at all?  The debates  expound,  that  the  retention  of
discretionary power with the Governor was not, in any way, contrary  to  the
power of responsible Government, nor should the same be assumed as  a  power
akin to that vested with a Governor  under  the  Government  of  India  Act,
1935.  And from that, emerges the answer that the retention and  vesting  of
discretionary powers with the Governor, should not be taken in the sense  of
being contrary  to,  or  having  the  effect  of  negating,  the  powers  of
responsible Government.  Significantly, with  reference  to  the  Governor’s
discretionary powers, it was emphasized by  Dr.  B.R.  Ambedkar,  that  “the
clause is a very limited clause; it says: ‘except insofar as  he  is  by  or
under this Constitution’.  Therefore, Article 163 will have to  be  read  in
conjunction with such other Articles which specifically reserve  the  powers
to the Governor”.  “It is not a general clause giving the Governor power  to
disregard the advice of his Ministers, in any matter in which  he  finds  he
ought to disregard.  There, I think, lies the fallacy of the argument of  my
Hon’ble  friend…”.   In  our  considered  view,  the  Constituent   Assembly
debates, leave no room for any doubt, that the framers of  the  Constitution
desired to embody the general and basic  principle,  describing  the  extent
and scope of the discretionary power of the Governor, in sub-article (1)  of
Article 163, and not  in  sub-article  (2)  thereof,  as  suggested  by  the
learned counsel for the respondents.
140.  Insofar as the instant issue is concerned, reference may also be  made
to the Justice Sarkaria Commission report on “Centre – State Relations”  and
the Justice M.M. Punchhi Commission  report  on  “Constitutional  Governance
and Management of Centre – State Relations”.  The conclusions drawn in  both
the above reports are clear  and  explicit.   In  paragraph  4.1.03  of  the
Justice M.M.  Punchhi  Commission  report,  the  observations  of  Dr.  B.R.
Ambedkar  have  been  highlighted  to  the  effect,  that  insofar  as   the
constitutional role of the Governor is  concerned,  “…..the  Governor  under
the Constitution has no function which  he  can  discharge  by  himself;  no
functions at all. While he has  no  functions,  he  has  certain  duties  to
perform, and  I  think  the  House  will  do  well  to  bear  in  mind  this
distinction.”.  “..…This Article, nowhere, either in clause  (a)  or  clause
(b) or clause (c), says that the Governor in  any  particular  circumstances
may overrule the Ministry. Therefore, the criticism that has been made  that
this Article somehow enables the Governor  to  interfere  or  to  upset  the
decision of the  Cabinet  is  entirely  beside  the  point,  and  completely
mistaken.”  And thereafter, in paragraph 4.2.14 of the Justice M.M.  Punchhi
Commission report, it is observed as under:
“4.2.14 In a very limited field, however, the Governor may exercise  certain
functions in his discretion, as provided in Article 163(1). The  first  part
of Article 163(1) requires the Governor to act on the advice of his  Council
of Ministers. There is, however, an exception in  the  latter  part  of  the
clause in regard to matters  where  he  is  by  or  under  the  Constitution
required to function in his discretion. The expression "required"  signifies
that the Governor can exercise his discretionary powers only if there  is  a
compelling necessity to do so. It has been held that the expression  "by  or
under the Constitution" means that the necessity  to  exercise  such  powers
may arise from any express provision of the  Constitution  or  by  necessary
implication. We would like to add that such necessity may  also  arise  from
rules and orders made "under" the Constitution."
4.2.15 Thus, the scope of discretionary powers as provided in the  exception
in clause (1) and in clause (2) of Article  163  has  been  limited  by  the
clear language of the two clauses. It is an accepted  principle  that  in  a
parliamentary democracy with a responsible form of  government,  the  powers
of the Governor as Constitutional or formal head of the State should not  be
enlarged at the cost of the real executive, viz. the Council  of  Ministers.
The scope of discretionary powers has to be strictly construed,  effectively
dispelling the apprehension, if any, that  the  area  for  the  exercise  of
discretion covers all or any  of  the  functions  to  be  exercised  by  the
Governor under the Constitution. In other words, Article 163 does  not  give
the Governor a general discretionary power to act  against  or  without  the
advice of his Council of  Ministers.  The  area  for  the  exercise  of  his
discretion is limited. Even this limited area, his choice of  action  should
not be arbitrary or fanciful. It  must  be  a  choice  dictated  by  reason,
actuated by good faith and tempered by caution.”

The important observations in the Justice M.M.  Punchhi  Commission  report,
with reference  to  Article  163(2),  are  contained  in  paragraph  4.3.03.
Relevant extract of the same is reproduced below:
“Article 163(2) gives an impression that the Governor has a wide,  undefined
area of discretionary powers even outside situations an impression needs  to
be dispelled. The Commission is of the view that the scope of  discretionary
powers under Article  163(2)  has  to  be  narrowly  construed,  effectively
dispelling the  apprehension,  if  any,  that  the  so-called  discretionary
powers extends to all the functions that the  Governor  is  empowered  under
the  Constitution.  Article  163  does  not  give  the  Governor  a  general
discretionary power to act against or without the advice of his  Council  of
Ministers. In fact, the area for the exercise of discretion is  limited  and
even in this limited area, his choice of action should not be nor appear  to
be arbitrary or fanciful. It must be a choice dictated by reason,  activated
by good faith and tempered by caution.
The Governor's discretionary powers are the following:  to  give  assent  or
withhold or refer a Bill for Presidential  assent  under  Article  200;  the
appointment of  the  Chief  Minister  under  Article  164;  dismissal  of  a
Government which has lost confidence but refuses to quit,  since  the  Chief
Minister holds office during the pleasure of the  Governor;  dissolution  of
the  House  under  Article  174;  Governor's  report  under   Article   356;
Governor's responsibility for certain regions under  Article  371-A,  371-C,
371-E, 371-H etc. These aspects are now considered below: …”

We are of the considered view, that the  inferences  drawn  in  the  Justice
M.M. Punchhi Commission report  extracted  hereinabove,  are  in  consonance
with the scheme of the functions and powers assigned to the  Governor,  with
reference to the executive and legislative functioning  of  the  State,  and
more particularly with reference to the interpretation of Article  163.   We
endorse and adopt the same, as a correct expression  of  the  constitutional
interpretation, with reference to the issue under consideration.
141.  Though the debate could be endless, yet we would consider it  apposite
to advert to the decisions rendered by this Court in the Sardari  Lal  case2
and  the  Samsher  Singh  case1.   Insofar  as  the  Sardari  Lal  case2  is
concerned, this Court had held therein, that the President or the  Governor,
as the case may be, would pass an order only on his  personal  satisfaction.
In the above case, this Court while examining the case of an employee  under
Article 311(2) (more particularly, under proviso (c) thereof), recorded  its
conclusions, in the manner expressed  above.   The  same  issue  was  placed
before a seven-Judge Bench constituted to re-examine  the  position  adopted
in the Sardari Lal case2.  The position came to be reversed.  This Court  in
the Samsher Singh case1 declared, that wherever  the  Constitution  required
the satisfaction of the President or the Governor, for the exercise  of  any
power or function, as for example under  Articles  123,  213,  311(2),  317,
352(1), 356 and 360, the satisfaction required by the Constitution  was  not
the personal satisfaction of the President or the Governor. “…  but  is  the
satisfaction of the President or  of  the  Governor  in  the  constitutional
sense under the Cabinet system of Government …”.   It  is  therefore  clear,
that even though the Governor may be authorized to exercise some  functions,
under different provisions of the Constitution, the same are required to  be
exercised only on the basis of the aid and  advice  tendered  to  him  under
Article 163, unless the Governor has been expressly authorized, by or  under
a constitutional provision, to discharge the concerned function, in his  own
discretion.
142.  We are therefore of the considered view, that insofar as the  exercise
of discretionary powers vested with the Governor is concerned, the  same  is
limited to situations,  wherein  a  constitutional  provision  expressly  so
provides,  that  the  Governor   should   act   in   his   own   discretion.
Additionally, a Governor can exercise his functions in his  own  discretion,
in situations  where  an  interpretation  of  the  concerned  constitutional
provision, could not be construed otherwise.   We  therefore  hereby  reject
the contention advanced on behalf of the respondents, that the Governor  has
the freedom to determine when and in  which  situation,  he  should  take  a
decision in his own discretion, without the aid  and  advice  of  the  Chief
Minister and his Council of Ministers.  We accordingly, also turn  down  the
contention, that whenever the Governor in the discharge  of  his  functions,
takes a decision in  his  own  discretion,  the  same  would  be  final  and
binding, and beyond the purview of judicial review.  We  are  of  the  view,
that  finality  expressed  in  Article  163(2)  would  apply  to   functions
exercised by the Governor in his own discretion, as are  permissible  within
the framework of Article 163(1), and additionally, in situations  where  the
clear intent underlying a constitutional provision, so requires i.e.,  where
the exercise of such power on the aid and advice, would run contrary to  the
constitutional scheme, or would be contradictory in terms.
143.  We may therefore summarise our conclusions as under:
Firstly, the measure of discretionary power of the Governor, is  limited  to
the scope postulated therefor, under Article 163(1).
Secondly, under Article 163(1)  the  discretionary  power  of  the  Governor
extends  to  situations,  wherein  a  constitutional   provision   expressly
requires the Governor to act in his own discretion.
Thirdly, the Governor  can  additionally  discharge  functions  in  his  own
discretion, where such intent emerges from a  legitimate  interpretation  of
the concerned provision, and the same cannot be construed otherwise.
Fourthly, in situations where this Court has  declared,  that  the  Governor
should exercise the particular function at his own and without  any  aid  or
advice, because of the impermissibility of the other alternative, by  reason
of conflict of interest.
Fifthly, the submission advanced on behalf  of  the  respondents,  that  the
exercise of discretion under Article 163(2) is final and  beyond  the  scope
of judicial review cannot be accepted.  Firstly, because  we  have  rejected
the submission advanced by the respondents, that the  scope  and  extent  of
discretion vested with the Governor  has  to  be  ascertained  from  Article
163(2), on the basis whereof the submission was  canvassed.   And  secondly,
any discretion exercised beyond  the  Governor’s  jurisdictional  authority,
would certainly be subject to judicial review.
Sixthly, in view of the conclusion drawn at  Fifthly  above,  the  judgments
rendered in the Mahabir Prasad Sharma case20, and  the  Pratapsing  Raojirao
Rane case12, by the High Courts of Calcutta  and  Bombay,  respectively,  do
not lay down  the  correct  legal  position.   The  constitutional  position
declared therein, with reference to Article 163(2),  is  accordingly  hereby
set aside.
144.  The conclusions recorded hereinabove will constitute the  foundational
basis for determining some of the other important  issues,  that  arise  for
consideration in the present controversy.
                                     II.
                       Article 174 of the Constitution

174.  “Sessions of the State Legislature, prorogation and dissolution –  (1)
The Governor shall from time to time summon the House or each House  of  the
Legislature of the State to meet at such time and place as  he  thinks  fit,
but six months shall not intervene between its last sitting in  one  session
and the date appointed for its first sitting in the next session.
(2)The Governor may from time to time –
(a)prorogue the House or either House;
(b)dissolve the Legislative Assembly.”

145.  A forceful and determined  contention  was  advanced  by  the  learned
counsel for the respondents, that the process of summoning the Assembly  can
never  be  considered  as  anti-democratic.   It  was  asserted,  that   the
summoning a Legislature, can only further  the  democratic  process,  as  it
opens the House for carrying  out  legislative  activity.   As  against  the
above,  it  was  pointed  out,  that  when  the  Assembly  is  prorogued  or
dissolved, the democratic/legislative  processes  are  placed  in  suspended
animation.   An  action  which  prorogues  or  dissolves  the   Legislature,
according to learned counsel,  can  be  taken  to  be  actions  whereby  the
democratic/legislative process is either temporarily stalled, or brought  to
an end.  According  to  learned  counsel  for  the  respondents,  there  can
therefore be no justification, to find fault with the order of the  Governor
dated  9.12.2015,  or  with  his  message  dated  9.12.2015,  by  which  the
summoning of the 6th session of the Assembly, was  preponed  from  14.1.2016
to 16.12.2015, and thereby the democratic/legislative  process  was  brought
into active animation, from a date earlier than originally determined.
146.  Adverting to the plain reading of Article 174, it was submitted,  that
the Governor has not only been vested  with  the  authority  to  summon  the
House, but has also been vested with the authority to  determine,  at  which
venue and at what time, the House should be summoned.  For  this,  reference
was made to the words “as he thinks fit” in Article  174(1),  which  signify
and imply, that the Governor, would exercise his  discretion  and  power  to
summon the Assembly, on his own, and without any  aid  or  advice.   It  was
contended on behalf of the respondents, by inviting  the  Court’s  attention
to sub-article (2) of Article 174, that even the question of proroguing  and
dissolving the House, had been left to the free will and discretion  of  the
Governor.
147.   In  connection  with  the  interpretation  of  Article  174(1)  which
pertains to the power of the Governor, to summon the House,  it  was  urged,
that the words “as  he  thinks  fit”  satisfy  the  requirement  of  Article
163(1), inasmuch as it fulfills the  constitutional  stipulation,  that  the
Governor would exercise functions in his discretion, which he  is  expressly
required, “by or under” the Constitution, to exercise on his  own.   It  was
therefore asserted, that it  being  clearly  and  expressly  mandated  under
Article 174(1) itself, that the Governor could summon the State  Legislature
“as he thinks fit” the requirement of Article 163(1) stands satisfied.
148.  Yet again, the  contention  advanced  at  the  hands  of  the  learned
counsel for the respondents, at first blush seems  to  be  most  acceptable.
But, the Constituent Assembly debates in connection with  Article  174,  the
historical background depicting the manner in which Article 174 came  to  be
drafted, and treatises on the issue, clearly lead to  the  conclusion,  that
the submission  advanced  at  the  behest  of  the  respondents,  cannot  be
accepted.  We shall hereinafter, detail our reasons, for not  accepting  the
respondents’ contention.
149.  It would be relevant to mention, that  draft  Article  153  eventually
came to be renumbered as Article 174 of  the  Constitution.   draft  Article
153 has been extracted in paragraph xxx 48 xxx, above.   A  perusal  of  the
draft Article 153(2) would reveal, that the same through the  words  “as  he
thinks fit”, vested discretion with the Governor  to  choose  the  time  and
place at which the House(s) were to be summoned.  The above words have  been
retained in Article 174.  The retention of the said  words,  would  lean  in
favour of the submission canvassed on  behalf  of  the  respondents.  It  is
however relevant to notice, that the power to summon the House or Houses  of
the State Legislature was postulated under draft Article 153(2)(a),  whereas
the power to prorogue  and  dissolve  the  House  or  Houses  of  the  State
Legislature was expressed in draft Articles 153(2)(b) and (c)  respectively.
 The most significant feature of draft Article 153  was  expressed  in  sub-
article (3) thereof, wherein it was provided,  that  the  functions  of  the
Governor with reference to sub-clauses (a) and (c),  namely,  the  power  to
summon and dissolve the House or Houses of the State  Legislature  “…  shall
be exercised by him in his discretion.”  The words used in  sub-article  (3)
of draft Article 153, were in consonance with  the  requirements  postulated
under Article 163(1).  Needless to mention, that under Article  163(1),  the
Governor can exercise only such functions in his own discretion which he  is
expressly required, by  or  under  the  Constitution,  to  exercise  in  his
discretion. The manner in which draft Article 153(3) was  originally  drawn,
would have left no room for any doubt, that the  Governor  would  definitely
have had the discretion to summon or dissolve the House  or  Houses  of  the
State Legislature, without any aid  or  advice.   After  the  debate,  draft
Article 153 came to be renumbered as  Article  174.   Article  174  reveals,
that sub-article (3) contained  in  draft  Article  153  was  omitted.   The
omission of sub-article (3) of draft Article 153, is  a  matter  of  extreme
significance,  for  a  purposeful  confirmation  of   the   correct   intent
underlying the drafting of Article 174. The  only  legitimate  and  rightful
inference, that can be drawn in the final analysis is, that the  framers  of
the Constitution  altered  their  original  contemplation,  and  consciously
decided not  to  vest  discretion  with  the  Governor,  in  the  matter  of
summoning and dissolving the House, or Houses of the State  Legislature,  by
omitting sub-article  (3),  which  authorized  the  Governor  to  summon  or
dissolve, the House or Houses of Legislature at his  own,  by  engaging  the
words “… shall be exercised by him in his discretion…”.   In  such  view  of
the matter, we are satisfied in concluding, that the  Governor  can  summon,
prorogue and dissolve the House, only on the aid and advice of  the  Council
of Ministers with the Chief Minister as the head.  And not at his own.
150.  The historical reason relevant for the present determination,  emerges
from the fact, that a Governor under the Constitution,  is  not  an  elected
representative.  A Governor is appointed by a warrant issued under the  hand
and seal of the President under Article 155, and his term of  office  enures
under Article 156, during the pleasure of the President.  A Governor  is  an
executive nominee, and  his  appointment  flows  from  the  aid  and  advice
tendered by the Council of Ministers with the Prime Minister  as  the  head,
to the President.  The President, on receipt of the above  advice,  appoints
the Governor.  Likewise, the tenure of  the  Governor  rightfully  subsists,
till it is acceptable to the Council of Ministers with  the  Prime  Minister
as its head, as the Governor under Article  156  holds  office,  during  the
pleasure of the President. In our considered view, such  a  nominee,  cannot
have an overriding authority, over the representatives of  the  people,  who
constitute the House or Houses of  the  State  Legislature  (on  being  duly
elected from their respective  constituencies)  and/or  even  the  executive
Government functioning  under  the  Council  of  Ministers  with  the  Chief
Minister as the head.  Allowing the Governor to  overrule  the  resolve  and
determination of the State legislature or the  State  executive,  would  not
harmoniously augur with the strong democratic principles  enshrined  in  the
provisions of the Constitution.  Specially so, because the  Constitution  is
founded on the principle of ministerial responsibility.  The  acceptance  of
the submission advanced  on  behalf  of  the  respondents,  would  obviously
negate  the  concept  of   responsible   Government.    Summoning   of   the
Legislature,  initiates  the  commencement  of  the   legislative   process;
prorogation of the Legislature temporarily defers the  legislative  process;
and the dissolution of the Legislature brings to  an  end,  the  legislative
process.  In the absence of any legislative  responsibility,  acceptance  of
the contention advanced  on  behalf  of  the  respondents,  would  seriously
interfere with the  responsibility  entrusted  to  the  popular  Government,
which operates through the Council of Ministers with the Chief  Minister  as
the head.  It is for the instant reasons also, that the submission  advanced
on behalf of the  respondents,  with  reference  to  the  interpretation  of
Article 174, does not merit acceptance.
151.  For an insight into Article 174, reference may also  be  made  to  the
observations recorded in the Justice Sarkaria Commission report  on  “Centre
– State Relations”, and  the  Justice  M.M.  Punchhi  Commission  report  on
“Constitutional Governance and Management  of  Centre  –  State  Relations”.
With reference to Article 174, the Justice M.M.  Punchhi  Commission  report
makes the following remarks:
“4.5.04 Summoning, proroguing and dissolution of the legislative assembly
Article 174 of the Constitution empowers the Governor  to  summon,  prorogue
or dissolve the House. It is a well-recognised principle that,  so  long  as
the Council of Ministers enjoys the confidence of the Assembly,  its  advice
in these  matters,  unless  patently  unconstitutional  must  be  deemed  as
binding on the Governor. It is only where such advice, if acted upon,  would
lead to an infringement of a constitutional provision, or where the  Council
of Ministers has ceased to enjoy the confidence of the  Assembly,  that  the
question arises whether  the  Governor  may  act  in  the  exercise  of  his
discretion. The Sarkaria Commission recommended that, if the Chief  Minister
neglects or refuses to summon the Assembly for holding a "Floor  Test",  the
Governor should summon the Assembly for the purpose. As  regards  proroguing
a House of Legislature, the Governor should normally act on  the  advice  of
the Chief Minister. But where the latter advises prorogation when  a  notice
of no-confidence motion  against  the  Ministry  is  pending,  the  Governor
should not straightaway  accept  the  advice.  If  he  finds  that  the  no-
confidence motion represents a legitimate challenge from the Opposition,  he
should advice the Chief  Minister  to  postpone  prorogation  and  face  the
motion. As far as dissolution of the House is  concerned,  the  Governor  is
bound by the  decision  taken  by  the  Chief  Minister  who  has  majority.
However, if the advice is rendered by a  Chief  Minister  who  doesn't  have
majority, then the Governor can try to see if an  alternate  government  can
be formed and only if that isn't possible, should the  house  be  dissolved.
This Commission reiterates the recommendations of  the  Sarkaria  Commission
in this regard.”

The extract of the report reproduced above, makes it abundantly clear,  that
as long as the Council of Ministers enjoys the confidence of the House,  the
aid and advice of the Council of Ministers headed by the Chief  Minister  is
binding on  the  Governor,  on  the  subject  of  summoning,  proroguing  or
dissolving the  House  or  Houses  of  the  State  Legislature.   The  above
position would stand altered, if  the  Government  in  power  has  lost  the
confidence of the House.  As and when the Chief Minister does not enjoy  the
support from the majority of the House, it is open to the  Governor  to  act
at his own, without any  aid  and  advice.   Aid  and  advice  sustains  and
subsists, till the Government enjoys the confidence of the  Legislature.  We
find no justification in taking a different view, than the one expressed  by
the Justice Sarkaria Commission report, conclusions whereof were  reiterated
by the Justice M.M. Punchhi Commission report.  We  endorse  and  adopt  the
same, as a correct expression of the constitutional interpretation,  insofar
as the present issue is concerned.
152.  In addition to the above, reference may also be made to  the  treatise
by M.N Kaul and S.L. Shakdher – “Practice and Procedure of Parliament”  (5th
Edition) published by  the  Lok  Sabha  Secretariat.   In  the  above  text,
Chapter IX bears the heading – “Summoning,  Prorogation  of  the  Houses  of
Parliament and the Dissolution of the Lok Sabha”.  Relevant portion  of  the
above chapter, has been extracted in paragraph xxx 47 xxx, above.  The  same
clearly expresses the view of the authors, that the  Governor  would  summon
or prorogue the House or Houses of the State Legislature,  on  the  aid  and
advice of the Chief Minister.  The narration by the  authors  reveals,  that
it would be open  to  the  Governor  to  suggest  an  alternative  date  for
summoning or proroguing the House or Houses of the  State  Legislature,  but
the final determination on the above issue rests with the Chief Minister  or
the Cabinet, which may decide to accept or  not  to  accept,  the  alternate
date suggested by the Governor.  The opinion of M.N Kaul and  S.L.  Shakdher
is in consonance with the Constituent Assembly debates.  The  position  only
gets altered, when the Government in power loses its majority in the  House.
 With reference to prorogation, the opinion expressed  by  the  authors  is,
that the same is also to be determined by the Council of Ministers with  the
Chief Minister as the head, except in a situation wherein  the  Government’s
majority in the House, is under challenge.  From  the  above  exposition  it
emerges, that the Chief Minister and his Council of  Ministers   lose  their
right to aid and advise the Governor, to summon or prorogue or dissolve  the
House, when the issue of the Government’s  support  by  a  majority  of  the
members of the House, has been rendered debatable.  We  have  no  hesitation
in endorsing the above view.  But, what is of  significance  and  importance
in the opinion expressed by M.N Kaul and S.L. Shakdher, which  needs  to  be
highlighted is, that the mere fact that some members  of  the  ruling  party
have  defected,  does  not  necessarily  prove  that  the  party  has   lost
confidence of the House.  And  in  such  a  situation,  if  there  is  a  no
confidence motion against the Chief Minister,  who  instead  of  facing  the
Assembly, advises the Governor to prorogue or  dissolve  the  Assembly,  the
Governor need not accept such advice.  In the above situation, the  Governor
would be well within his right,  to  ask  the  Chief  Minister  to  get  the
verdict of the Assembly, on the no confidence  motion.   The  above  authors
also express the view, that if the Chief Minister recommends dissolution  of
the Assembly, when the budget  has  not  been  voted,  whilst  the  Ministry
claims majority support, the Ministry in such a situation  should  face  the
Assembly and get the budget passed, before seeking dissolution for  whatever
reasons.  However, where there is reason to believe, that the Government  in
power no longer enjoys majority support, it is  open  to  the  Governor,  to
take steps to determine the issue of majority by a floor test.  And in  case
the Government in power fails to succeed in  the  same,  to  take  steps  to
ascertain the possibility of installing another Government, which  is  in  a
position to command majority support, so as to get the budget  passed.   Not
taking the aforesaid course, would lead to a  financial  impasse,  in  which
situation, it would be open to the Governor, to  move  the  President  under
Articles 356 or 360.  In the instant  situation  also,  M.N  Kaul  and  S.L.
Shakdher have opined, that it would be open to the Governor to  act  at  his
own, without any aid and advice of the Council of Ministers  headed  by  the
Chief Minister.  Neither of the  aforesaid  two  situations  emerge  in  the
facts and circumstances of the present case.
153.  In view of the consideration  recorded  hereinabove,  we  are  of  the
view, that in ordinary  circumstances  during  the  period  when  the  Chief
Minister and his Council of Ministers enjoy the confidence of  the  majority
of the House, the power vested with  the  Governor  under  Article  174,  to
summon, prorogue and dissolve the House(s) must be exercised  in  consonance
with the aid and advice of the Chief Minister and his Council of  Ministers.
 In the above situation, he is precluded to take an individual call  on  the
issue at his own will, or in his own discretion.  In a situation  where  the
Governor has reasons to believe, that the Chief Minister and his Council  of
Ministers have lost  the  confidence  of  the  House,  it  is  open  to  the
Governor, to require the Chief Minister and  his  Council  of  Ministers  to
prove their majority in the House, by a floor test.  Only  in  a  situation,
where the Government in power on the holding of such floor test is  seen  to
have lost the confidence of the majority, it would be open to  the  Governor
to exercise the powers vested with him under Article 174  at  his  own,  and
without any aid and advice.
154.  Since it is not a matter of dispute, that the  Governor  never  called
for a floor test, it is reasonable for us to infer, that  the  Governor  did
not ever entertain any doubt, that the Chief Minister  and  his  Council  of
Ministers were still enjoying the confidence of the majority, in the  House.
Nor was a motion of no confidence moved  against  the  Government.   In  the
above situation, the Governor just could not have summoned the  House,  vide
his order dated 9.12.2015, in his  own  discretion,  by  preponing  the  6th
session of the Legislative Assembly from  14.1.2016  to  16.12.2015.   This,
for the simple reason, that the Governor neither had  the  jurisdiction  nor
the power to do so, without the aid and advice of the Council  of  Ministers
with the Chief Minister as the head.
                                    III.
                       Article 175 of the Constitution

175.  “Right of Governor to address  and  send  messages  to  the  House  or
Houses – (1) The Governor may address the Legislative Assembly  or,  in  the
case  of  a  State  having  a  Legislative  Council,  either  House  of  the
Legislature of the State, or both Houses assembled  together,  and  may  for
that purpose require the attendance of members.
(2)  The  Governor  may  send  messages  to  the  House  or  Houses  of  the
Legislature of the State, whether with respect of a  Bill  then  pending  in
the Legislature or otherwise, and a House to which any message  is  so  sent
shall with all convenient despatch  consider  any  matter  required  by  the
message to be taken into consideration.”

155.  On the ambit and scope of messages  which  can  be  addressed  by  the
Governor to the House or Houses of State Legislatures under Article 175,  it
was submitted on behalf of the  respondents,  that  the  same  can  be  with
respect to “… a Bill then pending in the Legislature or  otherwise”.   Based
on the use of the above expression in Article 175(2),  it  was  asserted  on
behalf  of  the  respondents,  that  the  text  of  the  message  need   not
necessarily be limited to a Bill then pending before  the  Legislature.   It
was submitted, that  a  message  can  extend  to  additional  and  ancillary
issues, as was apparent from the words “or otherwise”  used  in  conjunction
with the words “with respect to a Bill then  pending  in  the  Legislature”.
It was also sought to be clarified, that the power vested with the  Governor
to address a message to the  House  or  Houses  of  the  State  Legislature,
should not be confused  with  the  power  vested  with  the  Governor  under
Article 200, which authorizes the Governor inter alia to accord  his  assent
to a Bill, or to return a Bill (if it is not a Money Bill) together  with  a
message  requesting  the  House  or  Houses  of  the  State  Legislature  to
reconsider the  Bill,  or  any  specified  provisions  thereof,  and/or  the
desirability of introducing such amendments in the  Bill,  as  the  Governor
may recommend in his message.  It was submitted, that  the  power  exercised
by the Governor under Article 200, relates to a Bill  passed  by  the  State
Legislature, whereas the message referred to in Article  175,  is  expressly
relatable to a Bill then pending  before  the  State  Legislature.   It  was
pointed out, that the use of the words “or otherwise” in Article 175(2)  has
the consequence of extending and enlarging the subject and context on  which
a message can be addressed by the Governor, to the State Legislature.
156.  It was further submitted  on  behalf  of  the  respondents,  that  the
message of the Governor dated 9.12.2015 (which  has  been  impugned  by  the
appellants before this Court), contained  three  directions.   Firstly,  the
Assembly should not be adjourned, till the  notice  of  resolution  for  the
removal  of  the  Speaker  –  Nabam  Rebia  dated  19.11.2015,  was  finally
determined, one way or the other.  Secondly, the notice  of  resolution  for
the  removal  of  the  Speaker  –  Nabam  Rebia,  should  be  taken  up  for
consideration in the list of business of  the  Assembly,  before  any  other
business of the day is taken up.  And thirdly, until the 6th session of  the
Assembly was prorogued, the Presiding Officer “shall” not  alter  the  party
composition in the House.   Insofar  as  the  directions  contained  in  the
impugned message dated 9.12.2015 are concerned, it was  asserted,  that  the
same merely brought to the notice  of  the  members  of  the  Assembly,  the
provisions of the Constitution, supplemented by  the  ‘Conduct  of  Business
Rules’, to ensure that the functioning of  the  House,  in  a  situation  of
turmoil and turbulence, was  carried  out  in  consonance  with  established
norms.  Insofar as the first direction is concerned, reference was  made  to
Rule 151 of the ‘Conduct of Business Rules’, which provides,  that  after  a
notice of resolution for the removal of  a  Speaker  is  tabled,  the  House
shall not be adjourned till the motion of no  confidence  has  been  finally
disposed of. Insofar as the second direction is concerned,  it  was  pointed
out, that the same is postulated under Rule 153 of the ‘Conduct of  Business
Rules’, which provides, that a notice of resolution for the removal  of  the
Speaker would be  included  in  the  list  of  business,  before  any  other
business of the day is taken up.  And insofar  as  the  third  direction  is
concerned, reference was made to  Article  179(c),  which  provides  that  a
Speaker may be removed from his office by a resolution of  the  Assembly  “…
passed by a majority of all the then  members  of  the  Assembly”.   It  was
therefore  contended  on  behalf  of  the  respondents,  that  the   alleged
directions contained in  the  message  addressed  by  the  Governor  to  the
Assembly, dated 9.12.2015, were not matters emerging out of any  independent
will or fancy of the Governor, but were in consonance  with  the  prescribed
and postulated rules of procedure, which  were  in  any  case  bound  to  be
followed, while considering a notice of resolution for the  removal  of  the
Speaker. It was  accordingly  asserted,  that  the  impugned  message  dated
9.12.2015 should be viewed as advice and guidance, tendered by the  Governor
to the Assembly, so as to preserve recognized constitutional norms.
157.  Based on the assertions recorded  hereinabove,  it  was  submitted  on
behalf of the respondents, that save and except, the ultimate desire of  the
Governor to preserve the democratic  process,  the  impugned  message  dated
9.12.2015, had no other fallout/consequence, nor was the  same  aimed  at  a
gain or loss, for one or the other political party.  It was contended,  that
no extraneous motive, could be attributed to the  Governor,  with  reference
to the message dated 9.12.2015.  It was also urged, that  any  action  taken
by the Assembly, in breach  of  the  message  dated  9.12.2015,  would  have
constituted a serious constitutional impropriety.   In  conclusion,  it  was
submitted, that the message dated 9.12.2015, should  be  taken  as   a  bona
fide gesture at the hands of the Governor, to require the Assembly to  carry
out its functions, in the peculiar circumstances  which  prevailed  at  that
juncture, in accordance with the provisions of  the  Constitution.   It  was
also pointed out, that the message dated  9.12.2015  was  addressed  by  the
Governor,  by  taking  note  of  the  actions  of  the  Speaker,   who   was
manipulating the situation, so as to defer consideration on  the  notice  of
resolution, for his own removal.
158.  We must yet again acknowledge, that the submissions  advanced  at  the
behest  of  the  respondents,  emerge  from  common  sense,  rationale   and
acceptable logic.  The question which arises for our consideration,  however
is, whether a message addressed by the Governor, could  extend  to  subjects
on which  the  above  message  dated  9.12.2015  was  addressed.   And  also
whether, the Governor could address a message to the  Assembly  in  his  own
discretion, without seeking the aid and advice of  the  Chief  Minister  and
his Council of Ministers.  Having given our thoughtful consideration to  the
above, it is not possible for us  to  accept  the  submissions  advanced  on
behalf  of  the  respondents.   Our  reasons  for  not  agreeing  with   the
respondents are recorded hereinafter.
159.  It is not disputed, that Section 63 of the Government  of  India  Act,
1935 was a precursor to Article 175.  Section  63  aforementioned  has  been
extracted in paragraph xxx 50 xxx, herein above.  A perusal  of  Section  63
of the Government of India Act, 1935, reveals that sub-section  (2)  thereof
had the words “in his discretion”, incorporated therein, with  reference  to
the scope and ambit of the Governor’s messages, to the Legislature.   It  is
therefore apparent, that under  the  Government  of  India  Act,  1935,  the
discretion to send messages to the Legislature, was  clearly  and  precisely
bestowed on the Governor,  as  he  may  consider  appropriate,  in  his  own
wisdom.  Article 175 has no such  or  similar  expression.  It  is  apparent
therefore, that the framers of the Constitution did  not  intend  to  follow
the regimen, which was prevalent under  Section  63  of  the  Government  of
India Act, 1935.   It  must  have  been  for  the  above  reason,  that  the
Constituent Assembly framed Article  175,  by  excluding  and  omitting  the
discretion which was vested with the Governor,  in  the  matter  of  sending
messages, under the Government of India Act, 1935.  Had it  been  otherwise,
the phrase “in his discretion” would have been retained by  the  Constituent
Assembly in Article 175.  It was  also  the  contention  on  behalf  of  the
appellants, that the messages addressed by the Governor should be  construed
by accepting, that  the  Governor  is  in  no  manner  associated  with  the
legislative process, except under Article 200.  A detailed consideration  in
this behalf has already been recorded hereinabove. In our  considered  view,
the Governor’s connectivity to the House in the matter of sending  messages,
must be deemed to be limited to the extent  considered  appropriate  by  the
Council of Ministers headed by the Chief  Minister.   In  fact,  it  is  not
possible for  us  to  conclude  otherwise,  because  Article  175  does  not
expressly provide, in consonance with  Article  163(1),  that  the  Governor
would exercise his above functions “in his  discretion”.   Thus  viewed,  we
have no hesitation in concluding, that messages addressed  by  the  Governor
to the House(s) have to be in consonance with the aid  and  advice  tendered
to him.
160.  During the course of hearing it  emerged,  that  one  of  the  primary
reasons for addressing the message dated 9.12.2015, was  the  fact,  that  a
notice of resolution for the removal of the Speaker  –  Nabam  Rebia,  dated
19.11.2015, was addressed by 13 MLAs  (-11  belonging  to  the  BJP,  and  2
Independent  MLAs),  to  the  Secretary   of   the   Legislative   Assembly.
Accordingly, in the understanding of the Governor,  it  would  constitute  a
constitutional impropriety, if  the  above  notice  of  resolution  for  the
removal of the Speaker,  was  not  taken  up  for  consideration  forthwith,
namely, immediately after the expiry of 14 days, provided for in  the  first
proviso under Article 179.  Insofar as the instant aspect of the  matter  is
concerned, whilst we do not doubt the bona fides of the Governor, it  cannot
be overlooked that the  Governor  has  no  express  or  implied  role  under
Article 179 on the subject of “the removal of Speaker  or  Deputy  Speaker”.
The aforesaid issue of removal of the Speaker (or Deputy Speaker),  squarely
rests under the jurisdictional authority of the Members of  the  Legislative
Assembly, who must determine at their own, whether the notice of  resolution
for the removal of the Speaker (or the Deputy Speaker) should be adopted  or
rejected.  In the instant view of the matter, the participatory role at  the
hands of the Governor, in the matter concerning the removal of the  Speaker,
can neither be understood nor  accepted,  and  may  well  be  considered  as
unwarranted.
161.  Another important reason, for addressing the message  dated  9.12.2015
to the House was, that a petition had been preferred by the  Chief  Whip  of
the  Congress  Legislature  Party  –  Rajesh   Tacho   on   7.12.2015,   for
disqualification of 14 MLAs belonging to the INC, under the Tenth  Schedule.
 It was therefore,  that  the  Governor  in  his  message  dated  9.12.2015,
ventured to inform the Presiding Officer of the House,  that  till  the  6th
session of the Assembly was prorogued, the party composition  of  the  House
“shall” not be altered.  Once  again,  for  exactly  the  same  reasons,  as
recorded in the preceding paragraph, it is imperative  for  us  to  express,
that the Governor has no role, in the disqualification  of  members  of  the
Assembly.  The exclusive jurisdiction on the above  issue,  rests  with  the
Speaker of the Assembly, under Paragraph 6 of the Tenth  Schedule.   Whether
the Speaker’s actions fall within the  framework  of  the  Constitution,  or
otherwise, does not fall within the realm of consideration of the  Governor.
 The remedy for any wrong doing under the Tenth Schedule,  lies  by  way  of
judicial review.   Neither  the  provisions  of  the  Constitution  nor  the
‘Conduct of Business Rules’ assign any such role to the Governor.   It  does
not lie within the domain of the Governor, to interfere with  the  functions
of the Speaker.  The Governor is not a guide or mentor to the Speaker.   The
Governor cannot require the  Speaker  to  discharge  his  functions  in  the
manner he considers constitutionally appropriate.   Both  the  Governor  and
the  Speaker  have   independent   constitutional   responsibilities.    The
Governor’s messages with reference to such matters  (as  were  expressed  in
the message dated 9.12.2015), do not flow from  the  functions  assigned  to
him.  The Governor cannot  likewise  interfere  in  the  activities  of  the
Assembly, for the reason that the Chief Minister, or the entire  Council  of
Ministers, or an individual Minister in the  Cabinet,  or  for  that  matter
even  an  individual  MLA,  are  not  functioning  in  consonance  with  the
provisions of the Constitution, or in the best interest of the  State.   The
State Legislature, does  not  function  under  the  Governor.   In  sum  and
substance, the Governor just cannot  act  as  the  Ombudsman  of  the  State
Legislature.
162.  In view of the above, we have no hesitation in  concluding,  that  the
messages addressed by the Governor  to  the  Assembly,  must  abide  by  the
mandate contained in Article 163(1), namely,  that  the  same  can  only  be
addressed to the State Legislature, on the aid and advice of the Council  of
Ministers with the Chief Minister as the head.  The message of the  Governor
dated 9.12.2015, was therefore beyond the  constitutional  authority  vested
with the Governor.
163.  For all the reasons recorded hereinabove, we  are  of  the  considered
view, that the impugned message of the Governor dated  9.12.2015  is  liable
to be set aside.  We order accordingly.
                                     IV.
                       Article 179 of the Constitution

179.  “Vacation and  resignation  of,  and  removal  from,  the  offices  of
Speaker and Deputy Speaker – A member holding office as  Speaker  or  Deputy
Speaker of an Assembly -
(a) shall vacate his office if he ceases to be a member of the Assembly;
(b) may at any time by writing under his hand addressed, if such  member  is
the Speaker, to the Deputy  Speaker,  and  if  such  member  is  the  Deputy
Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of  the  Assembly  passed
by a majority of all the then members of the Assembly:
Provided that no resolution for the purpose of clause  (c)  shall  be  moved
unless at least fourteen days' notice has been given  of  the  intention  to
move the resolution:
Provided further that, whenever  the  Assembly  is  dissolved,  the  Speaker
shall not vacate his office until immediately before the  first  meeting  of
the Assembly after the dissolution.”

164.   The  deliberations   and   the   discussions   recorded   hereinabove
substantiate, that even though in terms of Article 154, the executive  power
of the State vests in the Governor, and further, the executive power  vested
with the Governor would be exercised  by  him  either  directly  or  through
officers subordinate to him “in  accordance  with  this  Constitution”,  and
further, the mandate contained in Article 166 enjoins,  that  all  executive
actions of the Government of a State  are  expressed  in  the  name  of  the
Governor, yet Article  163(1)  leaves  no  room  for  any  doubt,  that  the
Governor is ordained, to exercise his functions on the  aid  and  advice  of
the Council of Ministers with the Chief  Minister  as  the  head.   Articles
154, 163 and 166 referred to above, are contained in Chapter II of  Part  VI
of the Constitution, which relate to the State Executive.  It  is  therefore
apparent, that the exercise of executive power by the Governor,  is  by  and
large notional.  All in all, the Governor had a limited scope of  authority,
relating to the exercise of executive  functions,  in  his  own  discretion,
i.e., without any aid and  advice.   The  aforesaid  limited  power  of  the
Governor is exercisable in situations, expressly provided for “by or  under”
the provisions of the Constitution.  The position  which  has  briefly  been
recorded above, has been examined in some detail in paragraph  xxx  139  xxx
of this judgment.
165.   Likewise,  even  though  Article  168  includes  the  Governor,   and
pronounces him to be a part of the State Legislature, the provisions of  the
Constitution  extend  no  legislative  responsibility  to  him,  within  the
precincts of the House or Houses of  the  State  Legislature.   Article  158
provides, that the “… Governor shall not be a  member  of  either  House  of
Parliament or of a House of the Legislature of any State  specified  in  the
First Schedule …”.  The Governor does not participate in debates within  the
Legislature, nor does he have any role in any activity  which  would  result
in the passing of a Bill, on the floor  of  the  House.   All  in  all,  the
legislative functionality constitutionally  extended  to  the  Governor,  is
extremely limited.  The role assigned to a Governor in the entire  gamut  of
the legislative process, is as ascribed  under  Article  200.   Needless  to
mention, that when the House or Houses of the State Legislature are  not  in
session, the Governor has the power to promulgate Ordinances  under  Article
213.  No such legislative power is  vested  with  the  Governor,  while  the
House or Houses of the State Legislature  are  in  session.   But  even  the
power to issue Ordinances, cannot be exercised by the Governor, on his  own.
 Ordinances can be issued by the Governor, only on the  aid  and  advice  of
the Council of Ministers with the Chief Minister as the head.   In  sum  and
substance,  the  Governor  is  vested  with  extremely  limited  legislative
functions.  The position which has been recorded above,  has  been  examined
in some detail in paragraph xxx 139 xxx of this judgment.
166.  It also needs to  be  kept  in  mind,  that  the  appointment  of  the
Governor is made under Article 155, not by way of an electoral process,  but
by a  warrant  issued  under  the  hand  and  seal  of  the  President.  The
constitutional Governor, is to hold his office  under  Article  156,  during
the pleasure of the President.  Since the President exercises his  functions
on the aid and advice of the Prime Minister and his  Council  of  Ministers,
the tenure of the office of the Governor has also to coincide with  the  aid
and advice of the Prime Minister and his Council of Ministers.
167.  It is in the above background, that the ambit and scope  of  the  role
of the Governor requires to be examined, with  reference  to  the  issue  of
removal of the  Speaker  (or  the  Deputy  Speaker)  under  Article  179(c).
Insofar as the issue of the removal of the Speaker is  concerned,  the  same
would depend on the result of the vote, on the notice of resolution for  his
removal.  If the majority votes in favour of the motion, the  resolution  is
liable to be adopted.  Failing which, it is liable to be rejected.   In  the
above situation, it is apparent, that neither the Chief  Minister,  nor  the
Council of Ministers, has any determinative role on the subject  of  removal
of the Speaker (or the Deputy Speaker).  Their individual  participation  is
limited to their individual vote, either in favour  or  against  the  motion
for the removal of the Speaker (or the  Deputy  Speaker).   Even  the  above
bit, is not available to the Governor.  The Governor has no role  whatsoever
in the removal of the Speaker (or the Deputy  Speaker).  Therefore,  in  our
considered view, no role direct or indirect can be assumed by the  Governor,
under Article 179(c).  The assumption of such a role,  and  the  fulfillment
thereof by addressing a message to the Assembly under Article 175, can  only
be ascribed as an ingenuity, without any constitutional  sanction.   In  the
above view of the matter, we are of the opinion, that the  impugned  message
of the Governor dated 9.12.2015,  cannot  be  endorsed  as  constitutionally
acceptable.
168.  Despite the above, the facts and circumstances  of  the  present  case
reveal, that the Governor in his alleged bona fide determination issued  the
impugned message dated 9.12.2015, statedly to advise  and  guide  the  State
Legislature, to carry out its functions in consonance  with  the  provisions
of the Constitution, and the rules framed under Articles 166 and  208.   The
question which arises for adjudication is not, that of the  Governor’s  bona
fides.  The question is of the jurisdictional authority of the Governor,  in
the above matter.  The Governor has no direct or  indirect  constitutionally
assigned role, in the matter of  removal  of  the  Speaker  (or  the  Deputy
Speaker).  The Governor is not the  conscience  keeper  of  the  Legislative
Assembly, in the matter of removal of the Speaker.  He does not  participate
in any executive or legislative responsibility, as  a  marshal.  He  has  no
such role assigned to him, whereby he can assume the  position  of  advising
and guiding the Legislative Assembly, on the  question  of  removal  of  the
Speaker (or Deputy Speaker).  Or to  require  the  Legislative  Assembly  to
follow a particular course.  The Governor can only perform  such  functions,
in his own discretion, as are specifically assigned  to  him  “by  or  under
this Constitution”, within the framework  of  Article  163(1),  and  nothing
more.  In our final analysis, we  are  satisfied  in  concluding,  that  the
interjects at the hands of the Governor, in the  functioning  of  the  State
Legislature, not expressly assigned to him,  however  bona  fide,  would  be
extraneous and without any  constitutional  sanction.   A  challenge  to  an
action beyond the authority of the Governor, would fall within the scope  of
the judicial review, and would be liable to be set aside.
169.  For all the reasons recorded hereinabove, we  are  of  the  considered
view, that the impugned order and message of the  Governor  dated  9.12.2015
are liable to be set aside.  We order accordingly.
                                     V.
                     Tenth Schedule to the Constitution.
                               TENTH SCHEDULE
                        [Articles 102(2) and 191(2)]
“6.  Decision  on  questions   as   to   disqualification   on   ground   of
defection.—(1) If any question arises as to whether a member of a House  has
become subject to disqualification under this Schedule, the  question  shall
be referred for the decision of the Chairman or, as the  case  may  be,  the
Speaker of such House and his decision shall be final:
Provided that where the question which has  arisen  is  as  to  whether  the
Chairman  or  the  Speaker  of  a  House  has   become   subject   to   such
disqualification, the question shall be referred for the  decision  of  such
member of the House as the House may elect in this behalf and  his  decision
shall be final.
(2) All proceedings under sub-paragraph (1) of this  paragraph  in  relation
to any question as to disqualification of a member of  a  House  under  this
Schedule shall be deemed to be proceedings in Parliament within the  meaning
of article 122 or, as the case may be, proceedings in the Legislature  of  a
State within the meaning of article 212.”

170.  Paragraph 6 of the Tenth Schedule has been extracted above.  It  inter
alia postulates, that  if  a  question  arises,  whether  a  member  of  the
Legislative  Assembly  has   become   subject   to   disqualification,   the
adjudicatory role for determining the above question, will fall  within  the
exclusive authority of  the  Speaker;  and  in  case  of  a  member  of  the
Legislative  Council,  solely  on  the  shoulders  of  the  Chairman.   Sub-
paragraph (2) of Paragraph  6,  by  a  constitutional  fiction,  adopts  all
proceedings carried out by the Speaker  or  the  Chairman  under  the  Tenth
Schedule, as proceedings of the State Legislature.
171.  It is  apparent  from  a  perusal  of  the  provisions  of  the  Tenth
Schedule, that no role whatsoever has been assigned to the Governor, in  the
matter of removal of a member of the Assembly/Council.  In  the  above  view
of the matter, even where a petition is filed for  disqualification  of  one
or more MLAs under the Tenth Schedule, the  Governor’s  direct  or  indirect
participation in the same, is impermissible.  The role of  the  Governor  in
such matters, would fall beyond the  spectrum  of  constitutional  sanction.
Besides  the  fact  that  the  Governor  has  no  role  whatsoever  in   the
proceedings carried out  under  the  Tenth  Schedule,  he  cannot  have  any
interest in the outcome of the disqualification proceedings under the  Tenth
Schedule.  The  Governor  can,  therefore,  never  be  concerned  with   the
proceedings under the Tenth Schedule, one way or the other.   The  fictional
assumption,  that  the  proceedings  under  the  Tenth   Schedule   have   a
legislative flavour, and are  akin  to  the  proceedings  before  the  State
Legislature, further removes the Governor from  any  participatory  role  in
the same.  Accordingly, in our considered view, any  exercise  of  authority
by the  Governor  based  on  pending  proceedings  against  members  of  the
Legislative Assembly, under the  Tenth  Schedule,  are  clearly  beyond  his
constitutional authority.  An order or message of the Governor, based on  an
underlying    consideration    relatable    to    pending    action(s)    of
disqualification, against a member or  members  of  the  State  Legislature,
would be  constitutionally  unsustainable.   It  was  acknowledged  by  both
sides,  that  the   impugned  order  and  message  of  the  Governor   dated
9.12.2015, were prompted by the petition filed on 7.12.2015,  by  the  Chief
Whip of the Congress Legislature Party, seeking disqualification of 14  MLAs
belonging to the INC.  The above position is also evident from a perusal  of
the order and message dated 9.12.2015.  In the above view of the matter,  it
is obvious, that the order and message were actuated by  a  constitutionally
impermissible consideration.  The same are  accordingly  liable  to  be  set
aside.  We order accordingly.
172.  The issue canvassed and answered hereinabove  with  reference  to  the
Tenth Schedule, does not fully answer the controversy which has  arisen  for
consideration before us.  The proposition canvassed,  also  relates  to  the
propriety of Speaker, in conducting proceedings under  the  Tenth  Schedule,
when his own position as the Speaker of the Legislative Assembly,  is  under
challenge.  After all, this was  the  real  basis  of  the  Governor  having
passed the impugned order and message dated  9.12.2015.   The  challenge  to
the Speaker’s position, in the instant  case,  was  based  on  a  notice  of
resolution for his removal dated 19.11.2015.  The resolution  was  moved  by
13 MLAs   (-11 belonging to the BJP, and 2 Independent MLAs).   Despite  the
above, unmindful of the challenge raised to his own  position,  the  Speaker
went on with the disqualification proceedings initiated by  the  Chief  Whip
of the Congress Legislature Party on 7.12.2015, by issuing a notice to  them
on 7.12.2015 itself, seeking their response by 14.12.2015.  All the 14  MLAs
aforementioned, were disqualified by an  order  passed  by  the  Speaker  on
15.12.2015, under the Tenth  Schedule.  Was  this  action  of  the  Speaker,
justified?  Learned counsel for the rival parties,  pointedly  addressed  us
on this issue.  We are also of  the  view,  that  this  issue  needs  to  be
determined in view of the directions which will  eventually  emerge  on  the
basis of the consideration recorded hereinabove.  A  repeat  performance  of
the earlier process, would bring the parties back to the threshold  of  this
Court, for the redressal of the same dispute, which is already before us.
173.  When the position of a Speaker is under challenge,  through  a  notice
of resolution for his removal, it would “seem” just  and  appropriate,  that
the Speaker first demonstrates his right to continue  as  such,  by  winning
support of the majority  in  the  State  Legislature.   The  action  of  the
Speaker in continuing, with one or  more  disqualification  petitions  under
the Tenth Schedule, whilst a notice of resolution for his own removal,  from
the office of Speaker is  pending,  would  “appear”  to  be  unfair.   If  a
Speaker truly and rightfully enjoys support of the  majority  of  the  MLAs,
there would be no  difficulty  whatsoever,  to  demonstrate  the  confidence
which the members of the State Legislature, repose in him.   The  office  of
Speaker, with which the  Constitution  vests  the  authority  to  deal  with
disqualification petitions against  MLAs,  must  surely  be  a  Speaker  who
enjoys confidence of the Assembly.  After all, disposal of the motion  under
Article 179(c), would take no time at all.  As soon as the motion is  moved,
on the floor of the House, the  decision  thereon  will  emerge,  forthwith.
Why would a Speaker who is confident of his majority,  fear  a  floor  test?
After his position as Speaker is  affirmed,  he  would  assuredly  and  with
conviction, deal  with  the  disqualification  petitions,  under  the  Tenth
Schedule.  And, why should a Speaker  who  is  not  confident  of  facing  a
motion, for his removal, have the right to adjudicate upon  disqualification
petitions, under the Tenth Schedule? The manner  in  which  the  matter  has
been examined hereinabove, is on ethical considerations.   A  constitutional
issue, however, must have a constitutional answer.  We  shall  endeavour  to
deal with the constitutional  connotation  of  the  instant  issue,  in  the
following paragraphs.
174.  Just like the other provisions of the Constitution (interpreted by  us
hereinabove), it would be apposite to ascertain the desired  intent  of  the
framers  of  the  Constitution,  emerging  from  the  Constituent   Assembly
debates, with reference to Article 179(c).  In the draft  Constitution,  the
present Article 179 was numbered as draft Article 158.  One  of  the  issues
debated, with reference to draft Article 158(c) was, with reference  to  the
words “all the then members of  the  Assembly”,  used  therein.   The  above
words were used to define, those who would participate in  the  motion,  for
the removal of the Speaker.  Needless to mention, that the said  words  were
retained in the final draft, in Article 179(c).  One of the members  of  the
Constituent Assembly had suggested substitution of the above words,  by  the
words, “the members of the Assembly present and voting”, as under:
“Mr. Mohd. Tahir: Sir, I beg to move:
"That in clause (c) of article 158, for the words `all the then  members  of
the Assembly' the words `the members of the Assembly present and voting'  be
substituted."
Clause (c) runs as follows:
"(c) may be removed from his office for incapacity or want of confidence  by
a resolution of the Assembly passed by a majority of all  the  then  members
of the Assembly."
Sir, so far as I can understand the meaning of the wording,  "all  the  then
members of the Assembly", it includes  all  the  members  of  the  Assembly.
Supposing a House is composed of 300 members then,  it  will  mean  all  the
members of the Assembly, that is 300. Supposing fifty members of  the  House
are not present in the House, then, those members will not  have  the  right
to give their votes so far as  this  question  is  concerned.  Therefore,  I
think that it would be better that this matter should be considered by  only
those members who are present in the  Assembly  and  who  can  vote  in  the
matter. If this phrase "all the then members  of  the  Assembly"  means  the
members who are present in the Assembly, then, I have no  objection.  If  it
means all the members of which the House is composed,  I  think  it  is  not
desirable to keep the clause as it stands.
With these few words, I move my amendment.”

The Constituent Assembly  debates,  do  not  appear  to  have  recorded  any
discussion on the above amendment.  The decision on the  proposed  amendment
was however minuted as under:
“Mr. President: The question is:
"That in clause (c) of article 158, for words ‘all the then members  of  the
Assembly’ the words ‘the members of the  Assembly  present  and  voting'  be
substituted."
The amendment was negatived.”
It is apparent, that the Constituent Assembly chose  to  retain  the  words,
“all the then members of the Assembly.”, and  declined  to  substitute  them
with the words, “the members of the Assembly present and  voting”.   We  are
of the view, that the acceptance of one set of words, and the  rejection  of
the  suggested  substitution,  would  effectively  render  a  constitutional
answer to the issue in hand.
175.  Article 179(c) provides, that a Speaker (or Deputy Speaker),  “may  be
removed from his office  by  a  resolution  of  the  Assembly  passed  by  a
majority of all the then members of the Assembly”.  A notice  of  resolution
for the removal of the Speaker (or the  Deputy  Speaker)  of  the  Assembly,
would therefore, have to be passed by a majority “of all  the  then  members
of the Assembly”.  The words “all the  then  members”  included  in  Article
179(c), are a conscious adage.  If the words  “all  the  then  members”  are
excluded from clause (c) of Article 179, it would affirm the  interpretation
which the appellants, wish us to  adopt.   The  connotation  placed  by  the
appellants, would legitimize the action of the Speaker, in going ahead  with
the  proceedings  under  the  Tenth  Schedule,  even  though  a  notice   of
resolution for his removal from the office  of  Speaker  was  pending.   The
words “all the then members” were consciously added to Article  179(c),  and
their substitution was not accepted by the  Constituent  Assembly.   We  are
satisfied, that the words “passed by a majority of all the then  members  of
the Assembly”,  would  prohibit  the  Speaker  from  going  ahead  with  the
disqualification proceedings under the Tenth Schedule,  as  the  same  would
negate  the  effect  of  the  words  “all  the  then  members”,  after   the
disqualification of one or more MLAs from the House.   The  words  “all  the
then members”, demonstrate an expression of  definiteness.   Any  change  in
the strength and composition  of  the  Assembly,  by  disqualifying  sitting
MLAs, for the period during which the notice of resolution for  the  removal
of the Speaker (or the Deputy Speaker) is pending, would conflict  with  the
express mandate of Article 179(c),  requiring  all  “the  then  members”  to
determine the right of the Speaker to continue.
176.  It would also be relevant to  notice,  that  the  Tenth  Schedule  was
inserted in the Constitution, by the Constitution (Seventy-third  Amendment)
Act, 1992, with effect from 24.4.1993.  The purpose sought  to  be  achieved
through  the  Tenth  Schedule,  is  clear  and  unambiguous.   The  same  is
unrelated to, and distinct from, the purpose sought to be  achieved  through
Article  179(c).   Neither  of  the  above  provisions,  can  be   seen   as
conflicting with the other.  Both, must  therefore  freely  operate,  within
their individual constitutional  space.   Each  of  them  will  have  to  be
interpreted, in a manner as would serve the object sought  to  be  achieved,
without  treading  into  the  constitutional  expanse  of  the  other.   The
interpretation would have to  be  such,  as  would  maintain  constitutional
purpose and harmony.  We would now venture  to  examine  the  instant  issue
from the above perspective, in the following paragraph.
177.  If a Speaker survives the vote, on a motion for his removal  from  the
office  of  Speaker,  he  would  still  be  able  to  adjudicate  upon   the
disqualification petitions filed under the Tenth Schedule.  The  process  of
judicial  review,  cannot   alter   the   above   position.    But,   if   a
disqualification petition is accepted by the Speaker, the disqualified  MLAs
will have no right to participate in the motion moved  against  the  Speaker
under Article 179(c).  A disqualified MLA, as we all know,  can  assail  the
order of his disqualification, by way of judicial review.  If  he  succeeds,
and his disqualification from the House is set aside,  such  a  disqualified
MLA, would be deprived of the  opportunity  to  participate  in  the  motion
against the Speaker, under Article 179(c).  In this situation,  the  process
of judicial review, can also  alter  the  position,  if  a  disqualification
order passed  by  the  Speaker,  is  set  aside  by  a  Court  of  competent
jurisdiction.  In the event of  an  MLA  having  been  disqualified  by  the
Speaker, the notice of resolution for the  removal  of  the  Speaker,  would
surely be dealt with, and will be disposed of, during the  period  when  the
concerned MLA stood disqualified.  Alternatively, if an  MLA  has  not  been
disqualified when the motion for the removal of the Speaker is taken up,  he
would have the right to vote on the motion pertaining to the removal of  the
Speaker,  whereafter,  the  petition  for  his  own  disqualification  would
certainly be considered and decided, by the Speaker.  It is  apparent,  that
the difficulty arises only, if the disqualification  petition  is  taken  up
first,  and  the  motion  for  the  removal  of  the  Speaker  is  taken  up
thereafter.  The possibility of a disqualification  petition  being  decided
on political considerations, rather than on merits, cannot  be  ignored.  In
fact, that is a real possibility.  Therefore, while it  will  not  adversely
affect the Speaker, if he faces the motion  of  his  own  removal  from  the
office of Speaker, before dealing with the  disqualification  petitions,  it
could seriously prejudice MLAs facing  disqualification,  if  petitions  for
their disqualification are taken up and dealt with first.  The  adoption  of
the former course, would also result in meaningfully giving  effect  to  the
words “all the then members” used in Article 179(c),  as  discussed  in  the
foregoing paragraph.   This  interpretation  would  also  purposefully  give
effect to the rejection of the amendment suggested  during  the  Constituent
Assembly debates, that the motion for removal of the Speaker, should be  the
majority of  “the  members  of  the  Assembly  present  and  voting”.   This
interpretation would also result in disregarding the retention of the  words
“all the then members of the Assembly”, in Article 179(c).  If  the  Speaker
faces  the  motion  of  his  own  removal  first,  both  the  constitutional
provisions would have their independent operational space  preserved.   None
of the concerned constitutional provisions would  interfere  with  the  free
functionality of the other, nor would one usurp the  scheme  postulated  for
the other.  We are therefore of the view, that  constitutional  purpose  and
constitutional harmony would be  maintained  and  preserved,  if  a  Speaker
refrains from adjudication of a  petition  for  disqualification  under  the
Tenth Schedule, whilst his own position, as  Speaker,  is  under  challenge.
This would also, allow the two provisions (Article  179(c),  and  the  Tenth
Schedule) to operate  in  their  individual  constitutional  space,  without
encroaching on the other.
178.  For the reasons recorded hereinabove, we hereby hold,  that  it  would
be  constitutionally  impermissible  for  a  Speaker  to   adjudicate   upon
disqualification petitions under the  Tenth  Schedule,  while  a  notice  of
resolution for his own removal from the office of Speaker, is pending.
                                     VI.
                          The political imbroglio.

179.  The first sequence of facts projected  by  the  appellants,  discloses
the alleged discord and dissension amongst MLAs of the ruling INC.   It  was
suggested, that the Governor having  taken  charge  on  1.6.2015,  acted  in
support of BJP causes.  It  would  be  necessary  to  record,  that  in  the
 60-member  Arunachal  Pradesh  State  Legislative  Assembly,  47  MLAs  had
allegiance to the INC, 11 MLAs to the BJP,  and  there  were  2  Independent
MLAs.  It was urged, that MLAs owing allegiance to the INC,  had  joined  up
with non-INC MLAs, to exploit  the  situation.   To  harness  the  rebelling
MLAs, resignation letters were allegedly taken from at least 17  legislators
belonging to the INC.  Eventually resignation letters of  two  MLAs  –  were
accepted on 6.10.2015, leading to their removal  from  the  House.   Efforts
made by the General Secretary AICC, in-charge for North-Eastern States –  V.
Narayanasamy, President of the Arunachal Pradesh Congress Committee  –  Padi
Richo, the Chief  Minister  –  Nabam  Tuki  and  others,  to  reign  in  the
dissident MLAs, did not have any positive effect.  The dissident  MLAs  even
addressed letters to  the  Governor,  in  furtherance  of  their  objective,
namely, to change the Chief Minister  –  Nabam  Tuki.   On  12.10.2015,  the
President of the Congress Legislature Party, issued a show cause  notice  to
19 MLAs of the INC, for indulging in anti-party activities.   The  same  was
repulsed by a press note issued by  21  MLAs  of  the  INC,  denouncing  the
leadership of the Chief Minister.
180.  On 16.11.2015, a notice of resolution for the removal  of  the  Deputy
Speaker – Tenzing Norbu Thongdok, was statedly moved by  16  MLAs  belonging
to the INC.  The Deputy Speaker, had been elected to the  House  on  an  INC
ticket.     On 19.11.2015,  13  MLAs  (-11  belonging  to  the  BJP,  and  2
Independent MLAs), moved a similar notice of resolution for the  removal  of
the Speaker – Nabam Rebia.  On 7.12.2015, the Chief  Whip  of  the  Congress
Legislature  Party  –  Rajesh  Tacho,  filed  a  petition  under  the  Tenth
Schedule,  seeking  disqualification  of  14  dissident  MLAs  of  the  INC,
including the Deputy Speaker – Tenzing Norbu Thongdok, on account  of  their
anti-party activities.
181.  On 9.12.2015, to ensure  that  the  notice  for  the  removal  of  the
Speaker was taken up for  consideration  without  any  delay,  the  Governor
ordered  the  preponement  of  the  6th  session  of  the  Assembly  earlier
scheduled for 14.1.2016, to 16.12.2015. The  above  order  dated  9.12.2015,
was passed by the Governor, without consulting the Chief  Minister  and  his
Council of Ministers or the Speaker.  The  Governor  additionally  required,
that the party composition of the House should  not  be  altered,  till  the
motion on the above notice, was disposed of.  This was done by the  Governor
through a message dated 9.12.2015.  Through the above message, the  Governor
attempted to forestall the proceedings initiated for disqualification of  14
MLAs of the  INC,  under  the  Tenth  Schedule.   The  above  message  dated
9.12.2015, was issued by the Governor, without the aid  and  advice  of  the
Chief Minister and his Council of Ministers.
182.  On 14.12.2015, the Chief Minister in a Cabinet meeting, resolved  that
the order of the Governor dated  9.12.2015  was  unconstitutional.   And  so
also, the message dated 9.12.2015.  The Speaker  through  his  letter  dated
14.12.2015, brought the above  position  to  the  notice  of  the  Governor.
Disregarding the edict of the Governor, the Speaker – Nabam Rebia  proceeded
against the 14 MLAs of the INC under the Tenth Schedule on  14.12.2015,  and
ordered their disqualification and consequent removal, from the Assembly  on
15.12.2015. On the same day –  15.12.2015,  the  Deputy  Speaker  –  Tenzing
Norbu Thongdok, quashed the order of disqualification of the 14 MLAs of  the
INC, including his own disqualification.  In the  preponed  6th  session  of
the Assembly held on 16.12.2015, the  resolution  for  the  removal  of  the
Speaker  –  Nabam  Rebia  was  adopted.   All  the  14  disqualified   MLAs,
participated in the resolution moved against the Speaker.   The  motion  was
passed. Nabam Rebia, ceased to be the  Speaker  of  the  State  Legislature,
with effect from 16.12.2015.
183.  The third sequence of facts projected by the  respondents,  highlights
a factual dispute between the parties, namely, whether or not  a  notice  of
resolution for the removal of the Deputy Speaker –  Tenzing  Norbu  Thongdok
dated 16.11.2015, had actually been moved by 16 MLAs belonging to  the  INC.
The  instant  determination  is  in  addition  to  the   consideration   and
conclusion (in paragraph 69, above) recorded by us on  the  same  aspect  of
the matter hereinbefore.  During  the  course  of  hearing  of  the  present
controversy, we examined the  material  produced  before  us  by  the  rival
parties, to substantiate the respective  assertions.   Based  on  the  above
examination, we may record the following:
Firstly, a copy of the above notice dated 16.11.2015 had  been  called  for,
by  the  Governor  through  a  communication  dated  7.12.2015.   Associated
information about the date of receipt of the notice, and  the  action  taken
thereon, was also asked for.  Even though  the  associated  information  was
furnished, yet  a  copy  of  the  above  notice  dated  16.11.2015  was  not
furnished to the Governor.
Secondly, in the response of  the  Secretary  of  the  Legislative  Assembly
dated 8.12.2015 (addressed to the office of the Governor), it was  asserted,
that the notice dated 16.11.2015 was under  consideration  of  the  Speaker.
All the same, a copy of the notice for the removal of the Deputy  Speaker  –
Tenzing Norbu Thongdok, was not forwarded to the Governor.
Thirdly, the Superintendent of Police-cum-ADC to the Governor,  visited  the
Secretary  of  the  Legislative  Assembly,  and  other   officers   of   the
Secretariat of the Legislative Assembly,  on  8.12.2015.   He  recorded  the
entire position in a note dated 8.12.2015.  He was informed  by  the  staff,
that the notice of resolution for the removal of the  Deputy  Speaker  dated
16.11.2015, was in a file lying at the official residence of the  Speaker  –
Nabam Rebia, at Itanagar.  The removal of  the  Deputy  Speaker,  is  to  be
dealt with by the Assembly, and not by the  Speaker.   Accordingly,  it  was
pointed out on behalf of the respondents, that there was no  reason/occasion
for the above file to be  at  the  official  residence  or  custody  of  the
Speaker.
Fourthly, the Speaker – Nabam Rebia is the appellant before us.  He has  not
disputed the factual position indicated in the letter of  the  Secretary  of
the  Legislative  Assembly  dated  8.12.2015,  or  in  the   note   of   the
Superintendent of Police-cum-ADC to Governor.
Fifthly, the Speaker – Nabam Rebia did  not  produce  the  original  of  the
notice dated 16.11.2015, when called for by this Court.  The stance  adopted
by him was, that the same is in the custody of the respondents.
Sixthly, the original notice dated 16.11.2015, was not produced before  this
Court, despite the same having been called for.
The appellant – Nabam Rebia, has not  produced  sufficient  material  before
this Court to demonstrate, that such a notice was actually  issued  (or  was
ever  received  by  him).   We  will  therefore  have  to  proceed  on   the
assumption, that no such notice of resolution for the removal of the  Deputy
Speaker, was ever issued on 16.11.2015, as alleged.  The  instant  inference
has been drawn by us, for the disposal  of  the  present  controversy.   The
above factual disputation, is however left open.  If such a question  arises
again, the rival or  concerned  parties,  will  have  the  liberty  to  lead
evidence, to enable a Court of  competent  jurisdiction,  to  determine  the
true factual position, with respect  to  the  issuance  of  the  aforestated
notice of resolution for the removal of the Deputy Speaker –  Tenzing  Norbu
Thongdok, dated 16.11.2015.
184.  The fourth sequence of facts projected  by  the  respondents  reveals,
that a notice of resolution for the removal of the Speaker  –  Nabam  Rebia,
was moved on 19.11.2015 by 13 MLAs  (–  11  belonging  to  the  BJP,  and  2
Independent MLAs).  The above event took place, after  the  5th  session  of
the Legislative Assembly was prorogued  on  21.10.2015.   The  Governor  had
originally, by his order dated 3.11.2015, summoned  the  House  to  meet  on
14.1.2016 for the 6th session of the  Assembly.   After  issuing  the  above
notice of resolution for the  removal  of  the  Speaker  –  Nabam  Rebia  on
19.11.2015, the concerned 13 MLAs addressed a  letter  on  the  same  day  –
19.11.2015, to the Governor.   They  sought  consideration  on  the  notice,
immediately on the completion of the notice  period,  provided  for  in  the
first proviso under Article 179(c).  In their letter  to  the  Governor,  it
was alleged, that the ruling political party did not  enjoy  confidence  and
majority of the House, as its strength had been reduced to 25 out of the 60-
member Legislative Assembly.
185.  Immediately on receipt of  the  above  letter  dated  19.11.2015,  the
Governor sought details  about  the  notice  (-dated  19.11.2015)  from  the
Secretary of the Legislative Assembly, requiring him to confirm the  factual
position, through a series of  communications  dated  27.11.2015,  3.12.2015
and 7.12.2015.  While the situation stood thus, the Chief Whip of the INC  –
Rajesh Tacho sought disqualification of 14 MLAs (respondent nos. 2  to  15),
belonging to his own political party – the INC, under  the  Tenth  Schedule,
on 7.12.2015.  A day thereafter, i.e., on 8.12.2015, the  Secretary  of  the
Legislative Assembly informed the Governor, that a notice of resolution  for
the removal of  the  Speaker  –  Nabam  Rebia,  had  been  received  in  the
Legislative Assembly on 19.11.2015.  On  confirmation  of  the  above  fact,
that 13 MLAs had actually sought the removal of the  Speaker,  the  Governor
sought legal opinion about  the  validity  and  legitimacy  of  the  Speaker
sitting in judgment over the removal of 14 MLAs, even  though  a  notice  of
resolution for the removal of  the  Speaker  himself,  was  pending  in  the
Assembly.  Believing that there was an attempt to subvert the provisions  of
the Constitution, the Governor rescheduled the 6th session of  the  Assembly
by preponing the same to 16.12.2015, by his order dated 9.12.2015.
186.  The fifth sequence of facts projected by the  respondents  highlights,
that a challenge was raised by the appellants, to the order and  message  of
the Governor dated 9.12.2015, and in respect of other connected  issues,  by
filing Writ Petition (C) Nos. 7745 of 2015 and 7998 of 2015  (on  17.12.2015
and 22.12.2015,  respectively)  before  the  Gauhati  High  Court.   It  was
asserted on behalf of the  respondents,  that  appreciation  of  the  actual
facts would establish, that the  challenge  raised  before  the  High  Court
through the above petitions, was not only unfair and unreasonable, but  also
illegitimate and constituted a  misuse  of  the  jurisdiction  of  the  High
Court.  Relying on the communication addressed  by  and  on  behalf  of  the
Speaker – Nabam Rebia and the Chief Minister – Nabam Tuki,  it  was  pointed
out, that their projection through the above letters  was,  that  the  order
and message of the Governor  dated  9.12.2015  were  unconstitutional.  MLAs
belonging to the INC who were continuing to  extend  support  to  the  Chief
Minister had taken a decision, not to allow the House to meet  in  terms  of
the order and message dated 9.12.2015.  In fact, the Speaker of  the  House,
it was pointed out, had addressed a letter to the Home Minister  to  ensure,
that no individual be allowed to enter  the  Legislative  Assembly  building
from 15.12.2015 to 18.12.2015 (- during the  entire  duration,  of  the  6th
session of the Legislative Assembly).  Not even MLAs  duly  elected  to  the
House, were  to  be  allowed  entry  in  the  premises  of  the  Legislative
Assembly.  A request was also made by the Speaker –  Nabam  Rebia,  for  the
deployment of  IRBn  (Indian  Reserve  Battalion)  and  CPMF  (Central  Para
Military Force) personnel, along with monitoring systems.   The  respondents
desire us to infer  from  the  above  sequence  of  events,  that  if  those
opposing the validity – legal and constitutional, of the order  and  message
of the Governor, were certain about their standpoint,  they  ought  to  have
sought judicial redress immediately.  If they were  right,  the  High  Court
would have immediately ordered, course correction.  It was  submitted,  that
all efforts were made to subvert the proceedings of the  State  Legislature.
Only when they had failed in their illegitimate action, they approached  the
High Court on 17.12.2015 and 22.12.2015, by  which  time,  due  process  had
resulted in the decisions referred to above.
187.  The sixth sequence of facts projected by the respondents, was  founded
on the prevailing political situation in the State since  March/April  2015,
which got worst in September 2015 when 21 MLAs of the INC started to  oppose
their own party  leadership,  by  calling  for  the  removal  of  the  Chief
Minister – Nabam Tuki, and for the installation of  Kalikho  Pul  (a  former
Finance Minister of the State), in his place.  In order to quell  the  above
dissensions, resignation letters of two MLAs - Wanglam Sawin and Gabriel  D.
Wangsu were accepted, as it was felt that this would  rein  in  the  others.
The above two MLAs  approached  the  High  Court,  which  stayed  the  order
accepting their resignations, on 7.10.2015.  It was at this  juncture,  that
the above two MLAs amongst 21 MLAs approached the Governor,  on  11.10.2015.
They made complaints against  the  Chief  Minister  –  Nabam  Tuki  and  the
Speaker – Nabam Rebia, to the Governor.  Shortly thereafter  on  19.11.2015,
13 MLAs (- 11 from the BJP and 2 Independent MLAs)  sought  the  removal  of
the Speaker –  Nabam  Rebia  under  Article  179(c).   On  the  same  day  –
19.11.2015, the above 13 MLAs met the Governor, and  sought  preponement  of
the 6th session of the House.
188.  The above sequence of facts, according  to  learned  counsel  for  the
respondents, and the impressions of the Governor, expressed in  his  letters
addressed to  the  President  dated  17.10.2015,  19.11.2015  and  1.12.2015
should be visualized together.  It was pointed out, that only then, it  will
be possible to appreciate the Governor’s thought  process,  when  he  issued
the order and message dated 9.12.2015.  In the letter dated 17.10.2015,  the
Governor informed the President about the  growing  dissidence  amongst  the
MLAs of the INC, who seemed to be divided into two  groups,  one  headed  by
Nabam Tuki – the Chief Minister, and the other by Kalikho  Pul  –  a  former
Finance Minister of the State.  The Governor also narrated  details  of  the
acceptance of the resignation letters of two MLAs  of  the  INC,  and  their
intimation to the Governor, that they  had  been  coerced  to  resign.   The
Governor also disclosed the alleged threats issued  by  unknown  miscreants,
to the two MLAs who had resigned, and to Kalikho Pul.   His  letter  pointed
out, that similar threats were also allegedly extended to members  of  their
families.  In  the  letter  dated  19.11.2015,  the  Governor  informed  the
President about the prevailing political complexity, and growing  dissidence
amongst MLAs belonging  to  the  INC,  including  some  Ministers.   In  his
letter, the Governor also narrated the contents of the memorandum issued  by
MLAs on 12.11.2015 calling for the removal of  the  ruling  INC  Government,
for paving the way for a new regime to  take  over.   And  also,  the  press
statement issued by  the  Peoples  Party  of  Arunachal,  calling  upon  the
Governor to require the Chief Minister to prove his majority  on  the  floor
of the House, failing which – to step down.  In the letter dated  1.12.2015,
the Governor informed the President about the receipt of a memorandum  dated
19.11.2015, requiring him to prepone the 6th session of the Assembly.   This
request, according to the Governor’s letter, was supported  by  the  Peoples
Party of Arunachal, on the ground that the Government headed by Nabam  Tuki,
had completely lost the confidence of the people, and had been reduced to  a
minority.  A notice of resolution for the removal of  the  Speaker  –  Nabam
Rebia dated 19.11.2015 signed by 13 MLAs, as well as, the dissidents  within
the MLAs of the INC, was again highlighted.
189.  During the course of hearing, learned  counsel  for  the  respondents,
had placed reliance on the first, third, fourth, fifth  and  sixth  sequence
of facts, to contend that the  political  turmoil  which  prevailed  in  the
State Legislature was of a nature, which would render  seeking  advice  from
the Council of Ministers and the Chief  Minister,  purposeless  and  futile.
It was submitted, that personal interests of  constitutional  authorities  –
the Chief Minister and the Speaker, had brought political volatility,  which
was having an adverse effect on the  democratic  functioning  of  the  State
Legislature.  Some of the salient features highlighted to  substantiate  the
above assertions, may be summarized below:
Firstly, the Chief Minister – Nabam Tuki  was  not  being  accepted  as  the
Leader of the House by at least 21 dissident  MLAs,  belonging  to  his  own
political party – the INC.   In the 60-member  State  Legislative  Assembly,
having 47 MLAs from the INC, with the 21 dissident MLAs from  the  INC,  the
Chief Minister, according to the dissidents, could not have mustered a  vote
of confidence.
Secondly, efforts made  by  the  party  leadership,  including  the  General
Secretary  AICC  in-charge  for  North  Eastern  States,  the  President  of
Arunachal Pradesh Congress Committee, and other  party  leaders,  could  not
rein in the 21 dissident MLAs.
Thirdly,  resignation  letters  were  taken  from  17  MLAs  on   6.10.2015.
Resignation letters of 2 MLAs were accepted.  The said 2 MLAs from  the  INC
- Wanglam Sawin and Gabriel D. Wangsu, alleged that they  had  been  coerced
into resigning from their  membership  of  the  Legislative  Assembly.   The
above two MLAs  approached  the  High  Court,  which  stayed  the  order  of
acceptance of their resignation on 7.10.2015, clearly  giving  the  Governor
the impression, that their assertion of being coerced  into  resigning  from
the membership of the Legislative Assembly, was prima facie correct.
Fourthly, the political turmoil in the Legislative Assembly, was on  account
of the complicity between the Chief Minister – Nabam Tuki and the Speaker  –
Nabam Rebia.  Both were related, and  had  joined  hands  to  frustrate  the
democratic process, to subvert the action of the rival MLAs, aimed at  their
removal.  The Chief Minister and the Speaker being  cousins,  were  adopting
all sorts of means, in support of one another.
Fifthly, on 12.10.2015, the President  of  the  Congress  Legislature  Party
issued a show cause notice to 19 MLAs of the INC,  for  indulging  in  anti-
party activities.  The action was denounced by 21 MLAs of the  INC,  through
a press note.
Sixthly, a strong impression was created, that a notice  of  resolution  for
the removal of the Deputy Speaker – Tenzing Norbu Thongdok dated  16.11.2015
had been moved by 16 MLAs belonging to the INC.  We have  already  concluded
hereinabove, that the appellants have not been able  to  produce  sufficient
material to establish, that such a notice was ever issued.
Seventhly, on  19.11.2015,  13  MLAs  (-11  belonging  to  the  BJP,  and  2
Independent MLAs) issued a notice for the removal of  the  Speaker  –  Nabam
Rebia.  A copy, as also, confirmation of the aforesaid notice sought by  the
Governor,  was  furnished  to  him  by  the  Secretary  of  the  Legislative
Assembly.
Eighthly, the 13 MLAs who had signed the  notice  for  the  removal  of  the
Speaker, by their letter dated 19.11.2015, sought  preponement  of  the  6th
session of the House, so as to be convened immediately on the completion  of
the notice period, provided for, in the first proviso under Article 179(c).
Ninthly, the Governor addressed three communications  to  the  Secretary  of
the  Legislative  Assembly  dated  27.11.2015,  3.12.2015,  and   7.12.2015,
seeking a copy of the notice of resolution dated 16.11.2015,  but  the  same
was never furnished to him.
Tenthly, the Governor’s letters dated 17.10.2015, 19.11.2015  and  1.12.2015
to the President, depicting the prevailing political turmoil  in  the  State
of Arunachal Pradesh, and highlighting the intra-party dispute  between  the
MLAs belonging to the INC.
Eleventhly, a  meeting  of  the  Congress  Legislature  Party  was  held  on
3.12.2015.  During the said meeting the activities of 21  MLAs  of  the  INC
were discussed, and their anti-party activities were highlighted.
Twelfthly, on 7.12.2015, the Chief Whip of the Congress Legislature Party  –
Rajesh Tacho, sought disqualification of  14  MLAs  belonging  to  the  INC,
under the Tenth Schedule.
It was further pointed out, that the  sequence  of  facts  which  transpired
after 9.12.2015 (after the Governor’s order and  message,  dated  9.12.2015)
reveals, that the inferences drawn by the  Governor,  about  the  prevailing
political  imbroglio  in  the  Legislative  Assembly,  had  been   correctly
appreciated and understood by  him.   The  subsequent  events  are  narrated
hereunder:
Thirteenthly, on 12.12.2015, the Advocate General of the State of  Arunachal
Pradesh, on being asked, tendered his opinion with reference  to  the  order
and message of the Governor dated 9.12.2015.  As per his opinion, the  above
order and message were unconstitutional, and in violation  of  the  ‘Conduct
of Business Rules’.
Fourteenthly, a Cabinet meeting was held on 14.12.2015,  wherein,  based  on
the opinion of the Advocate General, the Cabinet resolved,  that  the  order
of the Governor dated 9.12.2015  was  contrary  to  Article  174  read  with
Article 163 and Rule 3 of the ‘Conduct of Business Rules’.  And  also,  that
the message of the Governor dated 9.12.2015 was contrary to Article 175  and
Rule 245 of the ‘Conduct of Business Rules’.
Fifteenthly, the Secretary of the Legislative Assembly  wrote  a  letter  to
the  Governor  dated  14.12.2015,  indicating  that  Article  174  did   not
contemplate preponement or postponement  of  an  Assembly  session,  without
consultation with the Government and the  Speaker.   A  reference  was  also
made to Article 175, so as to point out, that a message can be addressed  by
the Governor, only when the House is in session.
Sixteenthly, the Officer-on-Special Duty to the Chief Minister  addressed  a
letter dated 14.12.2015 on behalf of the Chief Minister and his  Council  of
Ministers and some other MLAs, requesting for a meeting with  the  Governor.
  Nine  Ministers  including  the  Chief  Minister  met  the   Governor   on
15.12.2015, and allegedly committed acts of  serious  misbehaviour,  at  the
office/residence of the Governor, details  whereof  were  disclosed  by  the
Governor to the High Court, through I.A. No.29 of 2016.
Seventeenthly,  on  14.12.2015,  a  Cabinet  meeting  was  held,  wherein  a
resolution was passed by the Council of Ministers and  the  Chief  Minister,
requesting the Governor to recall and cancel, the order  and  message  dated
9.12.2015, and allow the session to be convened  on  14.1.2016,  as  earlier
scheduled.
Eighteenthly,  the Speaker – Nabam  Rebia,  through  a  communication  dated
14.12.2015, requested the  Minister  (Home)  –  Tanga  Byaling,  to  provide
foolproof security,  in and around the Legislative Assembly  building,  from
15.12.2015 to 18.12.2015, and to ensure that no individual  including  MLAs,
enter the Assembly building, during the above period.
Nineteenthly, on 15.12.2016, the Speaker  –  Nabam  Rebia,  disqualified  14
members of the Assembly belonging to the INC, including the  Deputy  Speaker
– Tenzing Norbu Thongdok.
Twentiethly,  the  Deputy  Speaker  on  15.12.2015  itself,  set  aside  the
disqualification   order   (-dated   15.12.2016),    including    his    own
disqualification order.
Twenty-firstly, the notice of resolution for the removal of  the  Speaker  –
Nabam Rebia, was taken up for  consideration  as  the  first  item,  in  the
agenda of the Assembly on 16.12.2015.  The resolution was adopted  resulting
in the removal of Nabam Rebia, from the office of Speaker.
Twenty-secondly, during the course of the proceedings of the House  held  on
17.12.2015, the Government headed by the Chief Minister –  Nabam  Tuki,  was
declared as having lost confidence of  the  Legislative  Assembly.   Kalikho
Pul, another INC MLA, was chosen to replace the Chief Minister.
190.  Premised on the aforesaid factual position, it was asserted on  behalf
of the respondents, that it was  wholly  unjustified  for  the  Governor  to
remain silent.  It was submitted that the prevailing  situation  called  for
immediate redressal, so as to preserve the democratic process in  the  State
Legislature,  and  more  particularly,  to   prevent   high   constitutional
functionaries  including  the  Chief  Minister,  the  Speaker,  and  Cabinet
Ministers, from acting with constitutional impropriety.
191.   We  have  given  our  thoughtful  consideration  to  the  submissions
advanced at the hands of the learned counsel for the respondents.  We  shall
now endeavour to deal with the  position  highlighted  through  the  factual
narration  summarized  above.   It  is  apparent  from  the  discussion  and
reflection recorded by us, that a Governor of a State, has  clearly  defined
duties, functions and responsibilities.   The parameters of  the  Governor’s
powers with  reference  to  Articles  163,  174,  175,  179  and  the  Tenth
Schedule, have been dealt with by us hereinabove, and need not be  repeated.
 We are of the view, that it  needs  to  be  asserted  as  a  constitutional
determination, that it is not within the realm of the  Governor  to  embroil
himself in any political thicket.  The Governor must remain aloof  from  any
disagreement,  discord,  disharmony,  discontent   or   dissension,   within
individual political parties.  The  activities  within  a  political  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,  irrespective  of  the
degree of their ethical repulsiveness.   Who  should  or  should  not  be  a
leader of a political party, is a political question, to be dealt  with  and
resolved privately by the political  party  itself.   The  Governor  cannot,
make  such  issues,  a  matter  of  his  concern.   The  provisions  of  the
Constitution do not enjoin upon  the  Governor,  the  authority  to  resolve
disputes within a political party, or between rival political parties.   The
action of the Governor, in bringing the aforesaid factual  position  to  the
notice of the President, in his monthly communications, may well  have  been
justified for drawing the President’s attention to  the  political  scenario
of the State. But,  it  is  clearly  beyond  the  scope  of  the  Governor’s
authority, to engage through his constitutional position, and  exercise  his
constitutional authority, to resolve the same.
192.  It is open to the Governor to take  into  consideration,  views  of  a
breakaway group.  Under Paragraph 4 of the  Tenth  Schedule,  legitimacy  is
bestowed on a breakaway group which comprises of not less  than  two  thirds
of the members of the concerned legislature party.   In  the  present  case,
the breakaway group belonging to the ruling INC  comprised  of  21  members,
whereas the  INC  had  47  MLAs  in  the  prevailing  60-member  Legislative
Assembly.  21 MLAs belonging to the INC did not constitute a legitimate  and
recognizable breakaway group.  The Governor could  not  in  support  of  the
protests  and  assertions  of  an   invalid   breakaway   group,   adopt   a
constitutional course, recourse whereof could be taken only  in  case  of  a
constitutional crisis.  As for instance, when  the  Government  is  seen  to
have lost the confidence of the House.  It has never been  the  position  of
the Governor, that the Chief Minister – Nabam Tuki, had lost the  confidence
of the House.  Nor, that the INC could  not  sustain  its  majority  in  the
Assembly.  Had that been the position, the Governor would have called for  a
floor test.  Admittedly, the Governor never called for  a  floor  test,  nor
did he ever require the Chief Minister to  establish  his  majority  in  the
House.  The Governor’s actions, based on feuds and wrangles of  a  breakaway
group,  which  is  not  recognized  under  the  Tenth  Schedule,  cannot  be
constitutionally condescended.
193.  The Governor has no role whatsoever, in the  removal  of  the  Speaker
(or the Deputy Speaker) under Article 179.   The  question  of  adoption  or
rejection of a notice of resolution, for the removal of the Speaker,  is  to
be determined by the legislators.   If  the  resolution  for  the  Speaker’s
removal is supported by a simple majority of the members of the  House,  the
motion has to be adopted, and the Speaker has to be removed. Failing  which,
the motion has to be rejected.  Any action taken by the Governor,  based  on
disputations, with reference to activities in which he has no role to  play,
is liable to be considered as extraneous.  It is not  for  the  Governor  to
schedule the functioning of the Assembly.  It is also not in the  Governor’s
domain, to schedule the agenda of the House.  The Governor has no role  with
reference to the ongoings in the Assembly.  The  Governor  must  keep  away,
from all that goes on, within the House.
194.  As long as the democratic process in the Assembly functions through  a
Government, which  has  the  support  of  the  majority,  there  can  be  no
interference at the behest of the Governor.   A  constitutional  failure  as
contemplated under Article  356,  is  quite  another  matter.   So  also,  a
constitutional failure under Article 360.   Herein,  the  Governor  has  not
treaded the procedure postulated for a constitutional breakdown.
195.  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.  Even  the  Chief
Minister  and  his  Council  of  Ministers,  have  no   concern   with   the
disqualification  proceedings  contemplated  under   the   Tenth   Schedule.
Therefore, the legitimacy or illegitimacy thereof, is  beyond  consideration
of the Governor.  That being the constitutional position, there  can  be  no
justification in  the  Governor  initiating  action,  based  on  proceedings
commenced against MLAs, under the Tenth Schedule.  Any action taken  by  the
Governor, based  on  the  proceedings  being  carried  on  under  the  Tenth
Schedule, would be a constitutional impropriety.  It is open  to  individual
MLAs, against whom disqualification proceedings are taken (or who have  been
disqualified, and consequently have lost their membership of the House),  to
seek judicial review thereof.  The fact that 14 MLAs who  were  disqualified
by the Speaker – Nabam Rebia, on  15.12.2015,  had  approached  the  Gauhati
High  Court,  which  had  stayed  the  order  of   their   disqualification,
demonstrates that there are appropriate remedies  in  place.   The  Governor
need not worry about, or involve himself in, issues  which  are  within  the
realm  of  other  constitutional  authorities.   The   Indian   Constitution
provides for checks and  balances,  and  a  regime  of  redressal,  for  all
situations.
The decision:
196.  Based on the consideration and the conclusions  recorded  hereinabove,
it is inevitable to conclude as under:
(i)   The order of the Governor dated 9.12.2015 preponing  the  6th  session
of  the  Arunachal  Pradesh  Legislative  Assembly,   from   14.1.2016,   to
16.12.2015 is violative  of  Article  163  read  with  Article  174  of  the
Constitution of India, and as such, is liable to be quashed.   The  same  is
accordingly hereby quashed.
 (ii) The message of the Governor dated 9.12.2015, directing the  manner  of
conducting proceedings during the  6th  session  of  the  Arunachal  Pradesh
Legislative  Assembly,  from  16.12.2015  to  18.12.2015,  is  violative  of
Article 163 read with Article 175 of  the  Constitution  of  India,  and  as
such, is liable to be quashed.  The same is accordingly hereby quashed.
(iii) All steps and decisions taken by  the  Arunachal  Pradesh  Legislative
Assembly, pursuant to the Governor’s order and message dated 9.12.2015,  are
unsustainable in view of the decisions at (i) and (ii) above.  The same  are
accordingly set aside.
(iv)  In view of the decisions at (i) to (iii) above, the  status  quo  ante
as it prevailed on 15.12.2015, is ordered to be restored.

                                                       …………………………………………………J.
                                  (Jagdish Singh Khehar)

                                                       …………………………………………………J.
                                  (Pinaki Chandra Ghose)

                                                       …………………………………………………J.
                                  (N.V. Ramana)

Note: Emphases supplied in all the quotations extracted above, are ours.

New Delhi;
July 13, 2016.
                                 REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 6203-6204   OF 2016
          (@ SPECIAL LEAVE PETITION (CIVIL) NOS. 1259-1260 OF 2016)


NABAM REBIA AND BAMANG FELIX      …Appellant(s)

                                  Versus
DEPUTY SPEAKER AND ORS.           …Respondent(s)




                               J U D G M E N T


Dipak Misra, J.

      I respectfully concur with the views expressed on each of the  aspects
by my respected learned  brother  Khehar,  J.   However,  I  intend  to  add
something  pertaining  to  the  interpretation  of  Article  179(c)  of  the
Constitution of India especially in the context of  the  Tenth  Schedule  to
the Constitution.

2.    Article 179(a) postulates that a Speaker or a Deputy  Speaker  of  the
Assembly shall vacate his office  if  he  ceases  to  be  a  member  of  the
Assembly. Article 179(b) deals with resignation from  the  office.   In  the
case at  hand,  neither  clause  (a)  nor  clause  (b)  of  Article  179  is
attracted.  In  the  obtaining  fact  situation,  the  controversy  pertains
singularly to the understanding of clause (c).
3.    Article 179 reads as follows:-

“179. A member holding office as Speaker or Deputy Speaker of an Assembly?
shall vacate his office if he ceases to be a member of the Assembly;
(b) may at any time by writing under his hand addressed, if such  member  is
the Speaker, to the Deputy  Speaker,  and  if  such  member  is  the  Deputy
Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of  the  Assembly  passed
by a majority of all the then members of the Assembly:

      Provided that no resolution for the purpose of  clause  (c)  shall  be
moved unless at least fourteen days’ notice has been given of the  intention
to move the resolution.

      Provided  further  that,  whenever  the  Assembly  is  dissolved,  the
Speaker shall not vacate his  office  until  immediately  before  the  first
meeting of the Assembly after the dissolution.”

                                                         [underlining by me]

      Be it immediately clarified, we are  not  concerned  with  the  second
proviso.
4.    The thrust of the matter is what interpretation is  to  be  placed  on
Article 179(c) and the first  proviso,  being  diligently  and  respectfully
adherent to the norms of the  constitutional  interpretation.  I  may  state
with quite promptitude the purpose of adherence should not convey that I  am
confined to any kind of static principle but the principles that  flow  from
our organic, vibrant, flexible, inclusive  and  compassionate  Constitution.
There are precedential guides and, if I allow myself to say,  constitutional
precepts those serve as  light  posts  without  causing  any  violence  even
remotely, to the language employed in the Constitution.
5.    In State of Karnataka v. Union of  India  and  another[21]  Beg,  C.J.
posed  the question with regard to understanding of special  rules  relating
to the construction of Constitution in general or  of  our  Constitution  in
particular.   In that context, the learned Chief Justice spoke thus:-
“83. A written Constitution, like any other  enactment,  is  embodied  in  a
document.  There  are  certain   general   rules   of   interpretation   and
construction of all documents which, no doubt, apply to the Constitution  as
well. Nevertheless, the nature of a Constitution of  a  sovereign  Republic,
which is meant to endure and  stand  the  test  of  time,  the  strains  and
stresses  of  changing  circumstances,  to  govern  the  exercise   of   all
governmental powers,  continuously,  and  to  determine  the  destiny  of  a
nation, could be said  to  require  a  special  approach  so  that  judicial
intervention does not unduly thwart the march  of  the  nation  towards  the
goals it has set before itself.
            x    x           x          x          x
85. Although,  a  written  Constitution,  which  is  always  embodied  in  a
document, must necessarily be subject to the basic  canons  of  construction
of documents, yet, its very nature as the embodiment of the fundamental  law
of the land, which has to be adapted to the  changing  needs  of  a  nation,
makes it imperative for Courts to determine the meanings  of  its  parts  in
keeping with its broad and basic  purposes  and  objectives.  This  approach
seems to flow from what may be called a basic principle of  construction  of
documents of this type;  that  the  paramount  or  predominant  objects  and
purposes,  evident  from  the  contents,  must  prevail  over  lesser   ones
obscurely embedded here and there. The  Constitutional  document,  in  other
words, must be read as a whole and construed in keeping  with  its  declared
objects and its  functions.  The  dynamic  needs  of  the  nation,  which  a
Constitution must fulfil, leave no room for  merely  pedantic  hairsplitting
play with words or semantic quibblings. This, however, does  not  mean  that
the Courts, acting under the guise of  a  judicial  power,  which  certainly
extends to even  making  the  Constitution,  in  the  sense  that  they  may
supplement it in those parts of it where the letter of the  Constitution  is
silent or may leave room for its development by either ordinary  legislation
or judicial interpretation, can actually nullify,  defeat,  or  distort  the
reasonably clear meaning of any part of the Constitution in  order  to  give
expression to some theories of their own about the broad or basic scheme  of
the Constitution.

86. The theory behind the Constitution which can be taken into  account  for
purposes of interpretation, by going even so far as to fill what  have  been
called the “interstices” or  spaces  left  unfilled,  due  perhaps  to  some
deliberate vagueness or indefiniteness in the letter  of  the  Constitution,
must itself be gathered from express provisions  of  the  Constitution.  The
dubiousness of expressions used may be  cured  by  Courts  by  making  their
meanings clear and definite if necessary in  the  light  of  the  broad  and
basic purposes set before themselves by the Constitution-makers. And,  these
meanings may, in keeping with the objectives or ends which the  Constitution
of every nation must serve, change with changing requirements of the  times.
The power of judicial interpretation, even  if  it  includes  what,  may  be
termed as “intersticial” law making, cannot extend to direct  conflict  with
express provisions of the Constitution or to ruling them out of  existence.”

                                                            [emphasis added]

      The aforesaid paragraphs clearly convey that  judicial  interpretation
cannot  nullify,  defeat  or  distort  a  constitutional  provision  or  the
interpretative process  cannot  be  in  direct  conflict  with  the  express
provision of the  Constitution.  However,  the  learned  Chief  Justice  has
observed that constitutional  document  has  to  be  read  as  a  whole  and
construed keeping in view the declared objects and functions.  In  the  said
judgment, a distinction has been drawn between “the constitutional  law”  or
“the  fundamental  law”  and  other  laws  which   may   be   important   to
constitutional matters.  I  think  it  appropriate  to  reproduce  the  said
passage:-

“… The “fundamental distinction” between “the constitutional  law”  or  “the
fundamental law” and the ordinary laws, referred  to  there,  was  meant  to
bring out only this difference  in  the  uses  made  of  laws  which,  being
“fundamental”, can test the validity of all other laws on a lower  normative
level and these other laws which are so tested.  In  that  very  special  or
restricted sense, the law not found  in  “the  Constitution”  could  not  be
“constitutional,” or “fundamental” law… .”

6.    In  S.R. Chaudhuri v. State of Punjab and  others[22],  a  three-Judge
Bench while dwelling upon the manner in which the constitutional  provisions
are to be interpreted had observed thus:-
“Constitutional provisions are required to  be  understood  and  interpreted
with an object-oriented approach. A Constitution must not be construed in  a
narrow and pedantic sense. The words used  may  be  general  in  terms  but,
their full import and true meaning, has to be  appreciated  considering  the
true context in which the same are used and the purpose which they  seek  to
achieve.”

And, again:-

“It is a settled position that debates in the Constituent  Assembly  may  be
relied upon as an aid to interpret a constitutional provision because it  is
the function of the court to find out the intention of the  framers  of  the
Constitution. We must remember that a Constitution is not  just  a  document
in solemn form, but a living framework for  the  Government  of  the  people
exhibiting a sufficient  degree  of  cohesion  and  its  successful  working
depends upon the democratic spirit underlying it being respected  in  letter
and in spirit…”

7.    In this regard, I think  it  apt  to  reproduce  a  passage  from  the
Constitution Bench decision in M. Nagaraj and others v. Union of  India  and
others[23] :-
“The Constitution is not an ephemeral legal  document  embodying  a  set  of
legal rules for the passing hour. It sets out principles  for  an  expanding
future and is intended to endure for ages to come  and  consequently  to  be
adapted to the various crises  of  human  affairs.  Therefore,  a  purposive
rather than a strict  literal  approach  to  the  interpretation  should  be
adopted. A constitutional provision must be construed not in  a  narrow  and
constricted sense but in a wide and liberal manner so as to  anticipate  and
take account of changing conditions and purposes so  that  a  constitutional
provision does not get fossilised but remains flexible enough  to  meet  the
newly emerging problems and challenges.”
                                                         [emphasis supplied]

8.    I have referred to the aforesaid  pronouncements  as  they  have  laid
down the guidelines for understanding the text, context, the words  and  the
purpose  of  a  constitutional  provision.  Emphasis  is   on   flexibility,
adaptability  and   durability,  and  also  not  to  import  or  implant  an
interpretation which would be in conflict with the express language  of  the
Constitution.
9.    Having perceived the guidance from the precedents and keeping in  view
the cohesive  constitutional  precepts,  I  shall  proceed  to  analyse  the
language employed in Article 179(c). Prior to that, I think  it  condign  to
dwell upon the importance of the office of the Speaker.  There is no  shadow
of doubt in my mind that to appreciate the significance  of  the  provision,
namely, Article 179(c), in  the  context  of  constitutional  supremacy  and
constitutional consciousness, it is necessary to understand the position  of
the Speaker in the Constitution. Office of the Speaker in  our  history  had
its origin in 1921 when the Central  Legislative  Assembly  was  constituted
under the Montague-Chelmsford reforms. At that time, office of  the  Speaker
did  not  enjoy  much  importance.  But,  a  significant  one,   after   the
Constitution came into force, as is evident from the  constitutional  scheme
of ours, the Speaker enjoys high constitutional status and the  Constitution
reposes immense faith in  him.   For  this  reason  alone,  the  Speaker  is
expected to have a sense of elevated  independence,  impeccable  objectivity
and irreproachable fairness, and  above  all  absolute  impartiality.   This
expectation is the constitutional warrant; not a fond hope  and  expectation
of any individual or group.
10.   The Speaker has the duty to see that business of the House is  carried
out in a decorous and disciplined manner.  This functioning requires him  to
have unimpeachable faith in  the  intrinsic  marrows  of  the  Constitution,
constitutionalism and, “Rule of Law”.  The  faith,  needless  to  emphasise,
should be a visible  and  apparent  one.   That  is  why,  possibly,  former
Speaker  of  the  House  of  Commons  of  the   United   Kingdom,   Baroness
Boothroyd[24], stated:-
“When you have been  committed  all  your  adult  life  to  the  ideals  and
policies of one party, impartiality is a quality that you have to  work  at.
But if you cannot put aside partisanship you have no right to even think  of
becoming Speaker.”

      I have referred to the aforesaid only to  stress  upon  the  impartial
functioning and the constitutional neutrality of the Speaker.
11.   The expression can be different if one wishes to choose  the  metaphor
of the ancients.  The ancient wisdom would require the  Speaker  to  abandon
his “purbashrama” and get wedded to “parashrama”.  To elucidate,  a  Speaker
has  to  constantly  remain  in  company  with  the  cherished   values   of
incarnation  of  his  office  and  not  deviate  even  slightly   from   the
constitutional  conscience  and  philosophy.  His  detachment  has  to  have
perceptibility.
12.   For apposite appreciation, I may refer to  the  Constitutent  Assembly
debates.  The position of the Speaker being  different,  the  procedure  for
removal is  different  and,  the  debate  in  the  Constituent  Assembly  is
indicative of the same:-

To quote:-
“Mr. Mohd. Tahir: Sir, I beg to move:
“That in clause (c) of article 158, for the words ‘all the then members of
the Assembly’ the words ‘the members of the Assembly present and voting’ be
substituted.”
Clause (c) runs as follows:
“(c) may be removed from his office for incapacity or want of confidence by
a resolution of the Assembly passed by a majority of all the then members
of the Assembly”.
Sir, so far as I can understand the meaning of the wording,  “all  the  then
members of the Assembly”, it includes  all  the  members  of  the  Assembly.
Supposing a House is composed of 300 members then,  it  will  mean  all  the
members of the Assembly, that is 300.  Supposing fifty members of the  House
are not present in the House, then, those members will not  have  the  right
to give their votes so far as this  question  is  concerned.   Therefore,  I
think that it would be better that this matter should be considered by  only
those members who are present in the  Assembly  and  who  can  vote  in  the
matter.  If this phrase “all the then members of  the  Assembly”  means  the
members who are present in the Assembly, then, I have no objection.   If  it
means all the members of which the House is composed,  I  think  it  is  not
desirable to keep the clause as it stands.
With these few words, I move my amendment”.

“Mr. President: The question is :
“That in clause (c) of article 158, for words ‘all the then members of the
Assembly’ the words ‘the members of the Assembly present and voting’ be
substituted.”
The amendment was negatived.”

The factum of negativing  the  proposed  amendment  has  to  be  appreciated
keeping in mind the wisdom of the Founding Fathers.
13.   Presently to the anatomy of Article 179(c). The  said  provision  lays
focus on two aspects, namely, (i) resolution of the Assembly, and  (ii)  the
resolution to be passed by a  majority  of  all  the  then  members  of  the
Assembly.  The first proviso commands that no resolution for the purpose  of
clause (c) shall be moved unless fourteen days' notice  has  been  given  of
the intention to move the resolution. The fourteen days'  time  as  mandated
by the constitutional provision gives protection to the Speaker.  It  has  a
salutary purpose.  The Founding Fathers of the Constitution had  thought  it
appropriate that a resolution to be moved for removal of the  Speaker  is  a
matter of grave constitutional consequence and,  therefore,  the  “intention
to  move  the  resolution”,  has  to  precede  the  act  of  moving  of  the
resolution.  Be it stated that the Rules are framed  under  Article  208  of
the Constitution for regulating the procedure of a House of the  Legislature
of a State and the conduct of its business  and  said  procedures  prescribe
the manner of expressing the intention to move the resolution.
14.   While prescribing a resolution to  be  passed  by  the  majority,  the
framers of the Constitution have also provided for “all the then members  of
the Assembly”.  It indicates the intention  of  the  Founding  Fathers  that
“all the then members of the Assembly” have to be  regarded  as  to  be  the
actual or real figure.  A hypothetical argument may be advanced  that  if  a
member dies within the prescribed period of 14  days,  it  may  lead  to  an
absurd situation.  Similarly, the issue of resignation  may  arise  or  some
may stand convicted and thereby become disqualified.  Death  or  resignation
has to be kept in a different realm.

15.   The fulcrum  of  the  controversy  is  “disqualification”.   Different
disqualifications find mention under Article  191(1)  of  the  Constitution.
These contingencies are quite different than the situation  enshrined  under
Article 191(2) which has been inserted  by  the  Constitution  (Fifty-second
Amendment)  Act,  1985.  The  said  sub-Article   specifically   refers   to
disqualification  under  the  Tenth  Schedule.   Article  191,   after   the
amendment, reads as follows:-
“191. Disqualifications for membership

(1) A person shall be disqualified for being chosen as,  and  for  being,  a
member of the Legislative Assembly or Legislative Council of a State –

(a) if he holds any office of profit under the Government of  India  or  the
Government 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 mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a  citizen  of  India,  or  has  voluntarily  acquired  the
citizenship  of  a  foreign  State,  or  is  under  any  acknowledgement  of
allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

Explanation – For the purposes of this clause, a person shall not be  deemed
to hold an office of profit under the Government of India or the  Government
of any State specified in the First Schedule by reason only  that  he  is  a
Minister either for the Union or for such State.

(2) A person shall be disqualified for being a  member  of  the  Legislative
Assembly or Legislative Council of a State if he is  so  disqualified  under
the Tenth Schedule”.

Article 191(2) stipulates that a person shall be disqualified  for  being  a
member of the Legislative Assembly or Legislative Council of a State, if  he
is so disqualified under the Tenth Schedule.   It  is  absolutely  different
than what has been envisaged under Article 191(1).  Tenth Schedule  pertains
to disqualification on ground  of  defection.   Paragraph  2  of  the  Tenth
Schedule deals with decision on questions as to disqualification  on  ground
of defection. The said paragraph is as follows:-

“6. Decision on questions as to disqualification on  ground  of  defection.-
 (1) If any question arises as to whether a member of  a  House  has  become
subject to disqualification under  this  Schedule,  the  question  shall  be
referred for the decision of the Chairman  or,  as  the  case  may  be,  the
Speaker of such House and his decision shall be final:


      Provided that where the question which has arisen  is  as  to  whether
the Chairman  or  the  Speaker  of  a  House  has  become  subject  to  such
disqualification, the question shall be referred for the  decision  of  such
member of the House as the House may elect in this behalf and  his  decision
shall be final.


(2) All proceedings under sub-paragraph (1) of this  paragraph  in  relation
to any question as to disqualification of a member of  a  House  under  this
Schedule shall be deemed to be proceedings in Parliament within the  meaning
of Article 122 or, as the case may be, proceedings in the Legislature  of  a
State within the meaning of Article 212.”


16.   Paragraph 8 enables the Chairman or the Speaker of  a  House  to  make
rules for giving effect to the provisions of the Tenth Schedule.  The  power
conferred on the Speaker under the Tenth Schedule is enormous.   It  is  not
to  be  forgotten  that  the  Constitution  of   India   is   a   controlled
constitution.  It provides for checks and balances.  Some are  fundamentally
inherent.  Founding Fathers had desired, as the debate would  reflect,  that
the Speaker can be removed by the resolution passed by majority of  all  the
then members and not by the majority of the members present and  voting.  It
is to be borne in mind that at the time of framing of the  Constitution  the
Tenth Schedule was not in existence in  the  Constitution.  Certain  grounds
were mentioned in the Constitution itself and  it  has  also  been  provided
that if  a  person  is  disqualified  by  or  under  any  law  made  by  the
Parliament.  Therefore, it is necessary to  sustain  the  elevated  position
the Speaker constitutionally enjoys and also have  room  for  constitutional
propriety. There can be myriad situations in a democracy. The  Constitution,
as an organic instrument, has to be interpreted to meet all exigencies.   It
has to have  flexibility.  Assuming  the  requisite  members  express  their
intention to move the resolution for removal of the Speaker from the  office
and immediately the Speaker on a complaint initiates action under the  Tenth
Schedule, and as the resolution against the Speaker cannot be  moved  unless
14 days’ notice period expires, the members can be disqualified  within  the
said period and the Speaker would gain an advantage. Thus, it can result  in
a situation of constitutional conflict, that is, the  conflict  between  the
status of the Speaker conferred by the Constitution and the position he  has
been given after the constitutional  amendment.   The  final  arbiters  have
trusted him regard being  had  to  his  constitutional  status.  It  is  the
“constitutional  trust”.  Therefore,  there  should  be  perceptibility   of
absence of conflict.  That apart, it will not be  in  harmony  with  Article
179(c) or the constitutional norm.  It would also  cause  discord  with  the
language  employed  in  the  said  Article.   The   Founding   Fathers   had
deliberately retained the words “all the then members”,  by  negativing  the
proposed amendment.  The purpose  of  not  accepting  the  amendment  is  to
preserve the constitutional control over the situation.
17.   In  this  regard,  I  may  usefully  refer  to  Article  189  of   the
Constitution. It provides for voting in  Houses,  power  of  Houses  to  act
notwithstanding vacancies  and  quorum.   Sub-Article  (1)  of  Article  189
stipulates  that  save  as  otherwise  provided  in  the  Constitution,  all
questions at any sitting of a House of the legislature of a State  shall  be
determined by a majority of votes of the members present and  voting,  other
than the Speaker or Chairman, or person  acting  as  such.   The  said  sub-
Article also provides that Speaker or Chairman  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.  The  said  sub-Article,  thus,
clearly states about the majority  of  votes  of  the  members  present  and
voting and secondly, it empowers  the  Speaker  to  exercise  his  power  of
voting in case of equality of  votes.  In  contradistinction  to  the  same,
Article 181 provides that Speaker or  the  Deputy  Speaker  not  to  preside
while resolution for his removal from office is under consideration  and  he
is entitled to vote in the first instance on such resolution but not in  the
case of an equality of votes.  Article 181(2)  which  is  relevant  for  the
present purpose reads as follows:-
“(2) The Speaker shall have the right to speak in,  and  otherwise  to  take
part in the proceedings of, the Legislative Assembly  while  any  resolution
for his removal from office is  under  consideration  in  the  Assembly  and
shall, notwithstanding anything in Article 189, be entitled to vote only  in
the first instance on such resolution or on any  other  matter  during  such
proceedings but not in the case of an equality of votes.”

18.   The purpose of referring to the  said  Article  is  to  highlight  the
nature of participation of the Speaker when  the  question  of  his  removal
arises.  It is clearly different.  Under the Constitution he is entitled  to
take part in the proceedings and speak. Therefore, he is in  a  position  to
contest.   Appreciating  the  scheme  of  the  Constitution  and  especially
keeping in view the language  employed  in  the  first  proviso  to  Article
179(c) it is quite clear that it  is  the  constitutional  design  that  the
Speaker should not do any act  in  furtherance  of  his  interest  till  the
resolution is moved.
19.   In this regard, it is essential to understand  the  character  of  the
Tenth Schedule.  The  Tenth  Schedule  to  the  Constitution  has  conferred
adjudicatory  powers  on   the   Speaker.    While   deliberating   on   the
constitutionality of the said Schedule, the majority in Kihota  Hollohon  v.
Zachilhu and others[25], has stated that:-
“[G]  The  Speakers/Chairmen  while  exercising   powers   and   discharging
functions under the Tenth Schedule act as Tribunal adjudicating  rights  and
obligations under the Tenth Schedule and their decisions  in  that  capacity
are amenable to judicial review.

However, having regard to the Constitutional Scheme in the  Tenth  Schedule,
judicial review should not  cover  any  stage  prior  to  the  making  of  a
decision by the  Speakers/Chairmen.  Having  regard  to  the  constitutional
intendment and the status of the repository of the  adjudicatory  power,  no
quia  timet  actions  are  permissible,   the   only   exception   for   any
interlocutory interference being cases  of  interlocutory  disqualifications
or  suspensions  which  may   have   grave,   immediate   and   irreversible
repercussions and consequence.

[H] That paragraph 6(1) of the Tenth Schedule, to the  extent  it  seeks  to
impart finality to the decision of the Speakers/Chairmen is valid.  But  the
concept of statutory finality embodied in paragraph 6(1)  does  not  detract
from or abrogate judicial review under Articles 136,  226  and  227  of  the
Constitution insofar as infirmities based on  violations  of  constitutional
mandates, mala fides, non-compliance  with  rules  of  Natural  Justice  and
perversity, are concerned.

[I] That the deeming provision in  paragraph  6(2)  of  the  Tenth  Schedule
attracts an immunity analogous to that in Articles 122(1) and 212(1) of  the
Constitution as  understood  and  explained  in  Keshav  Singh  case[26]  to
protect the validity of proceedings from mere irregularities  of  procedure.
The deeming  provision,  having  regard  to  the  words  “be  deemed  to  be
proceedings in Parliament” or “proceedings in the legislature  of  a  State”
confines the scope of the fiction accordingly.

[J] That contention that the investiture of adjudicatory  functions  in  the
Speakers/Chairmen would by itself vitiate the provision  on  the  ground  of
likelihood  of  political   bias   is   unsound   and   is   rejected.   The
Speakers/Chairmen hold a pivotal position in  the  scheme  of  parliamentary
democracy and are guardians of the rights and privileges of the House.  They
are expected to and do take far reaching decisions  in  the  functioning  of
parliamentary democracy. Vestiture of power to  adjudicate  questions  under
the Tenth Schedule  in  such  constitutional  functionaries  should  not  be
considered exceptionable”.

                                                            (Emphasis added)

20.   The aforesaid reasoning eloquently speaks of the power,  position  and
the status the office of the Speaker  enjoys  under  the  Constitution.   It
also states about the scope of the fiction. The Court  has  constricted  the
power of judicial review and restricted it to the stage carving out  certain
extreme  exceptions.  It  is  because  the  Speaker,  while  exercising  the
authority/jurisdiction,   exercises    the    power    of    “constitutional
adjudication”.    The   concept   of   constitutional    adjudication    has
constitutional  value  in  a  parliamentary  democracy;  and  constitutional
values sustain the democracy  in  a  sovereign  Republic.   The  Speaker  is
expected  to  maintain  propriety  as  an  adjudicator.   The  Speaker  when
functions as a tribunal  has  the  jurisdiction/authority  to  pass  adverse
orders.  It is therefore, required that  his  conduct  should  not  only  be
impartial but such impartiality should be perceptible. It should  be  beyond
any  reproach.   It  must  reflect  the  trust  reposed  in  him  under  the
Constitution. Therefore, the power which  flows  from  the  introduction  of
Tenth Schedule by constitutional amendment is required  to  be  harmoniously
construed with Article 179(c).  Both the provisions of the Constitution  are
meant to subserve the purpose of sustenance of democracy which  is  a  basic
feature of the Constitution.  The majority  in  Manoj  Narula  v.  Union  of
India[27]  where speaking about  democracy  has  opined  that  democracy  in
India is a product of the rule of  law  and  it  is  not  only  a  political
philosophy but also an embodiment of constitutional philosophy.
21.   Thus, regard being had to the language employed in Article 179 (c)  of
the Constitution and the role  ascribed  to  the  Speaker  under  the  Tenth
Schedule, it is necessary that the  Speaker  as  a   tribunal  has  to  have
complete  detachment  and  perceivable  impartiality.   When  there  is   an
expression of intention  to  move  the  resolution  to  remove  him,  it  is
requisite that he should stand the test  and  then  proceed.   That  is  the
intendment of Article 179(c) and the said interpretation serves  the  litmus
test of sustained democracy  founded  on  Rule  of  Law;  and  the  Founding
Fathers had so intended and the constitutional  value,  trust  and  morality
unequivocally so suggest.  It  would  be  an  anathema  to  the  concept  of
constitutional  adjudication,  if  the  Speaker  is  allowed   to   initiate
proceeding under the Tenth Schedule of the Constitution after  intention  to
remove him from his office  is  moved.   The  fourteen  days'  period  being
mandatory, the words “all the then members”  gain  more  significance.   The
Constitution has confidence in the Speaker. I would like to call it  “repose
of constitutional confidence”.  Simultaneously, the command is to  have  the
confidence  of  the  majority  of  the  “actual  or  real   figure”.    This
understanding is gatherable from the express provisions of the  Constitution
and it clearly brings in  harmony  between  “constitutional  confidence”  or
trust and the “constitutional control”. Be it stated, the  position  has  to
remain the same even after introduction of the  Tenth  Schedule  to  sustain
the robust vitality of  our  growing  Constitution.   And  it  embraces  the
seminal spirit of the “Rule of Law”  that  controls  all  powers,  even  the
prerogative powers.
22.    Before  parting,  I  may  state  that  constitutional  restraint  and
discipline are revealed from the words of  the  Constitution  and  the  high
constitutional  functionary  should  remain  embedded  to  the   same   with
humility, because it is humility that forms the “foundation of  regard”[28].
It is the ultimate  constitutional virtue.



.............................J.
                                             (Dipak Misra)

New Delhi;
July 13, 2016

                                             REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6203-6204 OF 2016
 (Arising out of S.L.P. (C) Nos.1259-60 of 2016)


Nabam Rebia And Etc.                                    .… Appellants

          versus

The  Deputy  Speaker   &   Others                                         .…
Respondents

                       J U D G M E N T

Madan B. Lokur, J.

1.    Leave granted.
2.    The draft judgment prepared  by  my  learned  Brother  Justice  Khehar
details all the facts of the case and considers all the submissions made  by
learned counsel for the parties.  I have had the benefit  of  going  through
the detailed draft judgment. I am in general agreement with the  conclusions
arrived at on the interpretation of Article  163  and  Article  174  of  the
Constitution.  However, my reasons for arriving at the same conclusions  are
somewhat different and partly additional or supplementary, necessitating  an
expression of my views.  I have also gone through the draft judgment  of  my
learned Brother Justice Dipak Misra and in the view that I  have  taken,  it
is not necessary for me to expression any opinion on his conclusions.
3.    As far as the interpretation of Article 175  of  the  Constitution  is
concerned, I am of opinion that in view of the conclusions arrived  at  with
regard to  the  interpretation  of  Article  163  and  Article  174  of  the
Constitution, the interpretation of Article 175 of the Constitution and  the
actions of the Governor of Arunachal Pradesh in  this  regard  are  rendered
academic.  It is therefore not necessary or advisable to  comment,  one  way
or the other, on the interpretation of Article 175 of the  Constitution  and
the actions of the Governor of Arunachal Pradesh in this regard.
4.    The interpretation of Article 179 of the Constitution  also  does  not
arise in view of  the  conclusions  arrived  at  on  the  interpretation  of
Article 163  and  Article  174  of  the  Constitution  and  the  consequence
thereof.
5.    With regard to  the  interpretation  of  the  Tenth  Schedule  of  the
Constitution and the decision of the Speaker of the Legislative Assembly  of
Arunachal Pradesh, that too is unnecessary in view of the decision  rendered
by the Gauhati High Court in Pema Khandu v. The Speaker,  Arunachal  Pradesh
Legislative  Assembly[29]  -   the  decision  having  been  delivered  after
judgment was reserved in these appeals.
6.    The questions that arise for consideration, in  my  opinion,  are  the
following:
Whether, after having notified the  dates  of  sitting  of  the  Legislative
Assembly in consultation with the Chief Minister  and  the  Speaker  of  the
House, the Governor of Arunachal Pradesh could cancel  those  dates  in  the
exercise of ‘power’ under Article 174(1) of  the  Constitution  and  in  the
exercise of discretion under Article 163 of the Constitution?
Whether, after having notified the  dates  of  sitting  of  the  Legislative
Assembly in consultation with the Chief Minister  and  the  Speaker  of  the
House, the Governor  of  Arunachal  Pradesh  could  unilaterally  alter  and
reschedule those notified dates in the exercise  of  ‘power’  under  Article
174(1) of the Constitution read with Article  163  of  the  Constitution  by
issuing a fresh notification?
Whether generally, in the exercise of discretion  under  Article  163(1)  of
the  Constitution  read  with  Article  174(1)  of  the   Constitution   and
notwithstanding the relevant rules framed by the Legislative Assembly  under
Article 208 of the Constitution, the Governor  of  Arunachal  Pradesh  could
summon the Legislative Assembly without consulting the  Chief  Minister  and
the Speaker of the House?
Whether the message sent  by  the  Governor  of  Arunachal  Pradesh  on  9th
December,  2015  under  Article   175(2)   of   the   Constitution   was   a
constitutionally valid message that ought to have been (and was) acted  upon
by the Legislative Assembly?
Historical background of Article 163 of the Constitution

7.    Article 163 of the Constitution traces its origins  first  to  Section
50 of the Government of India Act, 1935 and  then  to  Article  143  in  the
draft Constitution. Section 50 of the Government of India  Act,  1935  reads
as follows:
“50. (1) There shall be a  council  of  ministers  to  aid  and  advise  the
Governor in the exercise of his functions, except in so far as he is  by  or
under this Act required to exercise his functions or  any  of  them  in  his
discretion :

Provided that nothing in this sub-section shall be construed  as  preventing
the Governor from exercising his individual judgment in any  case  where  by
or under this Act he is required so to do.

(2) The Governor in his discretion may preside at meetings  of  the  council
of ministers.

(3) If any question arises whether any matter is  or  is  not  a  matter  as
respects which the Governor is by or under this Act required to act  in  his
discretion or to exercise his  individual  judgment,  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, or ought  or  ought  not
to have exercised his individual judgment.”


8.     Two  important  expressions  find  mention  in  Section  50  of   the
Government  of  India  Act,  1935  namely,  “in  his  discretion”  and  “his
individual judgment”. These expressions are noticed in several  Sections  of
the Government of India Act, 1935 and came up for discussion when Section  9
of  the  Government  of  India  Act,  1935  (relating  to  the  Council   of
Ministers)[30] was discussed in the  House  of  Commons  on  28th  February,
1935.[31]  In the debate, the view  expressed  by  one  of  the  Members  of
Parliament was that the Governor-General acts “in his  discretion”  when  he
is not obliged to consult the Council of Ministers. On the  other  hand,  he
acts in “his individual judgment” when he consults the Council of  Ministers
but does not necessarily accept its advice. This was the view  expressed  by
Mr. Herbert Williams:
“I beg to move, in page 7, line 3, to leave out Sub-section (3).

I take it, Sir Dennis, that you  have  selected  this  particular  Amendment
because it enables us to discuss all the major problems  which  arise  under
this Clause—the problems of the relationship of the Governor-General to  his
ministers. There are in the Sub-section the words “in his  discretion,”  and
also the words “his individual judgment.” I want to be  clear  that  I  have
interpreted the significance of these  words  accurately,  and  perhaps  the
Secretary of State will be good enough to contradict me if I am  inaccurate.
I gather that when the Governor-General acts in his discretion it is a  case
where  he  acts  without  being  under  the  obligation  of  consulting  his
ministers at all, and that he acts perfectly  freely.  On  the  other  hand,
when he exercises his individual judgment, that is a case where he  consults
his ministers but is not obliged to take their advice, and,  therefore,  his
final decision may or may not disagree with the advice tendered  to  him  by
his ministers. I hope that I have got the  correct  interpretation,  because
it is necessary in discussing this most important constitutional issue  that
we should be all quite clear as to the meaning of the words  we  are  using.
As my  interpretation  has  not  been  challenged,  I  assume  that  I  have
correctly interpreted the significance of these words.”[32]

9.    This view was sought to be made more explicit by Mr. Bailey by  adding
sub-section (4) to Section 9 of the Government of India  Act,  1935  in  the
following words:
“I beg to move, in page 7, line 12, at the end, to  add: “(4)  (i)  In  this
Act the expression 'in his discretion'  when  applied  to  any  act  of  the
Governor-General or any exercise of his functions or powers means that  such
act may be done and such functions  and  powers  may  be  exercised  by  the
Governor-General without consultation with  his  Ministers.” “(ii)  In  this
Act the expression 'his individual judgment,' when applied  to  any  act  of
the Governor-General or any exercise of his functions or powers, means  that
such act may be done and such functions and powers may be exercised  by  the
Governor-General  only   after   consultation   with   his   Ministers   but
notwithstanding any advice given to him by his Ministers.” I do not want  to
occupy any length of time in moving  this  Amendment,  the  point  of  which
shortly is this: It  seeks  to  clarify  the  possible  distinction  between
“discretion” and “individual judgment.” I should be  very  grateful  if  the
learned Attorney-General would say what is  the  view  of  the  Government's
legal advisers as  to  the  distinction,  if  any,  between  discretion  and
individual judgment, and whether or not—this is most  important  of  all—the
Governor-General may use his  individual  judgment  without  consulting  his
Ministers.”[33]

10.    The discussion was responded to by the Solicitor-General (Sir  Donald
Somervell) confirming the distinction between “in his discretion”  and  “his
individual judgment” as  mentioned  above.  The  opinion  expressed  by  the
Solicitor-General was accepted by Mr. Churchill as the following  discussion
will demonstrate:
“The SOLICITOR- GENERAL (Sir Donald Somervell)
In moving this Amendment, my hon. Friend has confined himself to asking  two
specific questions. He asks  what  is  the  distinction  between  individual
judgment and discretion. The Bill has been drafted in this  way:  The  words
“individual judgment” are used in  relation  to  actions  by  the  Governor-
General on his individual judgment in the ordinary sense of the word  within
the ambit in which  normally  he  would  be  acting  on the  advice  of  his
Ministers. If within that ambit it is sought to  give  the  Governor-General
special powers or responsibilities, then  the  words  "individual  judgment"
are used. They are found, for example, in  Clause  12.  The  words  "in  his
discretion" are used where the Governor-General will be acting  on  his  own
judgment but in an area outside that field. For example, in  Clause  11  the
functions of the Governor-General in respect of defence are to be  exercised
by  him  in  his  discretion.  It  is  a  matter  of  drafting  which,  once
apprehended, I think it will be agreed, is convenient and useful.

My hon. Friend asked one further point, whether when the  words  "individual
judgment" are used the  Governor-General  can  act  without  consulting  his
Ministers. The answer is that as quite  obviously  that  action  is  in  the
field where normally he would be acting on the advice of his  Ministers,  no
cleavage between them as to right actions can possibly have  arisen,  except
of course  as  a  result  of  something  that  has  happened  and  has  been
discussed; but, of course, once  he  had  decided  that  within  that  field
action must be taken, he would take  it.  Take  quite  an  impossible  case.
Suppose that Ministers simply do not turn up. Then, of course, he must  take
the action in order to carry out the obligations conferred upon  him.  I  do
not think that the sort of  test  of  consultation  or  non-consultation  is
really the clue to the meaning. The  clue  is  that  the  words  "individual
judgment" are used in respect of powers within the area  in  which  normally
in ordinary times he would be acting on the advice  of  his  Ministers.  The
words "in his discretion" are  used  in  respect  of  powers  and  functions
outside that area.

Mr. CHURCHILL
It is, of course, a very convenient distinction between the  two  functions,
and, if my memory serves me right, it is fully explained in  the  report  of
the Joint  Select  Committee.  Undoubtedly  there  is  great  difficulty  in
describing this action and the rights of a Governor-General  under  the  two
specific and separate methods. I am bound to  say  that  I  agree  with  the
Solicitor-General that if  there  is  a  difference  between  the  Governor-
General and his Ministers and he exercises his individual  judgment  because
previous consultation with them has  broken  down,  he  will  not  be  under
the need of consulting them any more. All parleys having come to an  end  he
will take the matter into his own hands and act freely. I gather  that  that
is so?

The SOLICITOR-GENERAL
Yes. Of course he can, if he thinks proper and  if  all  friendly  relations
have broken down, proceed to act on his own responsibility. I  do  not  mean
to imply that in those circumstances he is  precluded  from  consulting  his
Ministers. At any point he may think it right to consult them.”[34]

11.   The view expressed was reiterated a week later when Section 12 of  the
Government of India Act, 1935 (relating to the special  responsibilities  of
the Governor-General) was discussed. During the debate on  5th  March,  1935
Mr. Somerville adverted to the opinion of the Solicitor-General and said:
“We are dealing here with a very weighty and special responsibility  of  the
Governor-General. Sub-section (2) of the Clause provides that the  Governor-
General shall in the exercise of his powers "use his  individual  judgment,"
and according to the definition given to us by  the  Solicitor-General  last
week, exercising his individual judgment means that before  he  comes  to  a
decision he must consult his Indian advisers.”[35]

12.   This makes it abundantly clear that  the  expression  “his  individual
judgment” obliges the Governor to take the aid and advice of his Council  of
Ministers but he is not bound by that advice and may act  in  his  judgment.
Mr. Churchill sought a clarification to the effect that if there is a break-
down of communications between the Governor-General and his Ministers,  then
the Governor-General could “act freely” that is to  say  that  he  would  be
discharged of the obligation to seek the aid and advise  of  the  Ministers.
The Solicitor-General affirmed that this is so and that  he  could  “proceed
to act on his own responsibility.”[36]
Independence and the Constituent Assembly

13.   After Independence, there was no intention to permit the  Governor  to
exercise any discretion or to take any decision in his individual  judgment.
 This is clear from the India (Provisional Constitution) Order, 1947  issued
in  exercise  of  powers  conferred  by  Section  9(1)(c)  of   the   Indian
Independence  Act,  1947.   Paragraph  3(2)  of   the   India   (Provisional
Constitution)  Order,  1947  explicitly  deletes  the  expressions  “in  his
discretion”, “acting in  his  discretion”  and  “exercising  his  individual
judgment” wherever  they  occur  in  the  Government  of  India  Act,  1935.
Paragraph 3(1) and paragraph 3(2) of the  India  (Provisional  Constitution)
Order, 1947 read as follows:
“3(1) As from  the  appointed  day,  the  Government  of  India  Act,  1935,
including the provisions of that Act which have not come into  force  before
the appointed day and the India (Central Government  and  Legislature)  Act,
1946, shall, until other provision is made by or in accordance  with  a  law
made by  the  Constituent  Assembly  of  India,  apply  to  India  with  the
omissions,  additions,  adaptations  and  modifications  directed   in   the
following provisions of this paragraph and in the Schedule to this Order.

(2) The following expressions shall be omitted wherever they occur,  namely,
“in  his  discretion”,  “acting  in  his  discretion”  and  “exercising  his
individual judgment”.”

14.    Apart  from  this  explicit  expression  of   intent,   the   overall
distinction between  the  two  expressions  “in  his  discretion”  and  “his
individual judgment” was understood and accepted by Sir  B.N.  Rau[37]  who,
in his address to I.A.S. probationers in New Delhi in  June,  1948  said  in
the context of the Government of India Act, 1935:
“There were, however, certain matters in respect of which the  Governor  was
required to act in his discretion without having to  consult  his  ministers
at all and certain other matters in respect of  which  he  was  required  to
exercise his individual judgment, though bound  to  consult  his  ministers.
In regard to both these classes of  matters,  the  Governor  was  under  the
general control of the Governor-General, who, in his  turn,  was  under  the
general control of the Secretary of State and, therefore, of the  Parliament
in England.  The area of responsible government in the  provinces  was  thus
restricted to some extent, though not  to  the  same  extent  as  under  the
Government of India Act of 1919.”

Later, in his address, he added:

“The framers of the Government of India Act of 1935 presumably foresaw  that
the distinction, which they had attempted to draw  between  the  matters  in
respect of which the Governor was required to  act  on  the  advice  of  his
Council of Ministers and those in respect of which he was not  so  required,
would disappear in practice, unless special provision was  made  to  resolve
any consequential  deadlocks.   Accordingly,  the  Act  gave  power  to  the
Governor, acting with the concurrence of the  Governor-General  and  subject
to certain other safeguards, to proclaim – what amounted to a suspension  of
responsible government in the  province  –  that  government  could  not  be
carried on in accordance with the provisions of the Act.”[38]

15.   As mentioned above, Article 143 in the draft Constitution  corresponds
to Section 50 of the Government  of  India  Act,  1935  and  this  reads  as
follows:
“Article 143 (1) There shall be  a  Council  of  Ministers  with  the  Chief
Minister 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) If any question arises whether any matter is  or  is  not  a  matter  as
respects which 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  have  acted  in
his discretion.

(3) The question whether any,  and  if  so  what,  advice  was  tendered  by
Ministers to the Governor shall not be inquired into in any court.”

16.   It is significant  and  necessary  to  note  that  (as  expected)  the
expression “his individual judgment” did not find mention in Article 143  in
the draft Constitution. This is as clear  an  indication  as  any  that  the
framers  of  our  Constitution  did  not  intend  that  the  Governor  could
disregard the aid and advice of the Council of  Ministers.  The  absence  of
the  expression  “his  individual  judgment”  makes  it  apparent  that  the
Constitution framers were clear that the Governor would always be  bound  by
the aid and advice of the Council of  Ministers.  Limited  elbow  room  was,
however, given to the  Governor  to  act  “in  his  discretion”  in  matters
permitted by or under the Constitution.
17.   Article 143 of the  draft  Constitution  was  the  subject  matter  of
discussion in the Constituent Assembly on 1st June,  1949.  In  response  to
the  ongoing  debate,  Mr.  Krishnamachari  expressed  the  view  that   the
retention of discretionary powers with the Governor was  necessary,  subject
to discussion at the appropriate stage, when other  Articles  of  the  draft
Constitution would be discussed. The only issue was whether the  mention  of
discretionary powers should be in Article 143 of the draft  Constitution  or
in the specific Article(s).  He was of opinion that it should  be  mentioned
in Article 143  of  the  draft  Constitution.  The  view  expressed  by  Mr.
Krishnamachari is as follows:
“Sir, it is no doubt true that  certain  words  from  this  article  may  be
removed, namely, those which refer to the exercise by the  Governor  of  his
functions where he has to use his  discretion  irrespective  of  the  advice
tendered by his Ministers. Actually, I think  this  is  more  by  way  of  a
safeguard, because there are specific provisions in this Draft  Constitution
which occur subsequently where the Governor  is  empowered  to  act  in  his
discretion irrespective of the advice tendered by his Council of  Ministers.
There are two ways of formulating the idea underlying it. One is to  make  a
mention of this exception in this article 143 and enumerating  the  specific
power of the Governor where he can exercise his discretion in  the  articles
that occur subsequently, or to leave out any mention of this power here  and
only state it in  the  appropriate  article.  The  former  method  has  been
followed. Here the general proposition  is  stated  that  the  Governor  has
normally to act on the advice of his Ministers  except  in  so  far  as  the
exercise of his discretions covered by those articles  in  the  Constitution
in which he is specifically empowered to act in his discretion. So  long  as
there are articles occurring subsequently in the Constitution  where  he  is
asked to act  in  his  discretion,  which  completely  cover  all  cases  of
departure from the normal practice to which I see my honourable  Friend  Mr.
Kamath has no objection, I may refer to article 188, I see no  harm  in  the
provision in this article being as it is. If  it  happens  that  this  House
decides that in all the subsequent articles, the discretionary power  should
not be there, as it may conceivably do, this particular  provision  will  be
of no use and will fall into desuetude……...  If  it  is  necessary  for  the
House either to limit the discretionary power of the Governor or  completely
do away with it, it could be done in the articles  that  occur  subsequently
where specific mention is made without which this power  that  is  mentioned
here cannot at all be exercised. That is the point  that  I  would  like  to
draw the attention of the House to and I think the  article  had  better  be
passed as it is.”[39]

18.   Dr. Ambedkar supported the view of Mr. Krishnamachari and in  response
to the debate, he stated as follows:
“The Honourable Dr. B. R. Ambedkar: Mr. President,  Sir,  I  did  not  think
that it would have been necessary for me to speak  and  take  part  in  this
debate after what my Friend, Mr. T. T.  Krishnamachari,  had  said  on  this
amendment of Mr. Kamath, but as my Friend, Pandit  Kunzru,  pointedly  asked
me the question and demanded a reply, I  thought  that  out  of  courtesy  I
should say a few words. Sir, the main and the crucial  question  is,  should
the Governor have discretionary powers? It is that  question  which  is  the
main and the principal question. After we come  to  some  decision  on  this
question, the other question whether the words used  in  the  last  part  of
clause (1) of article 143 should be retained in that article  or  should  be
transferred somewhere else could be usefully considered.  The  first  thing,
therefore, that I propose to do is to devote myself to this question  which,
as I said, is the crucial question. It has been said in the  course  of  the
debate that  the  retention  of  discretionary  power  in  the  Governor  is
contrary to responsible government in the provinces. It has also  been  said
that the retention of discretionary power in  the  Governor  smells  of  the
Government of India Act, 1935, which in  the  main  was  undemocratic.  Now,
speaking for myself, I have no doubt in my mind that  the  retention  in  on
the vesting the Governor with certain discretionary powers is  in  no  sense
contrary to or in no sense a negation of responsible government.  I  do  not
wish to rake up the point because on this point I can very well satisfy  the
House by reference to the provisions in the Constitution of Canada  and  the
Constitution of Australia. I do  not  think  anybody  in  this  House  would
dispute that the Canadian system of government is not  a  fully  responsible
system of government, nor will anybody in  this  House  challenge  that  the
Australian Government is not a responsible form of government. ……….

Pandit Hirday Nath Kunzru: Well, Dr. Ambedkar has missed the  point  of  the
criticism altogether. The criticism is not that in article 175  some  powers
might not be given to the Governor, the criticism  is  against  vesting  the
Governor with certain discretionary  powers  of  a  general  nature  in  the
article under discussion.

The Honourable Dr. B. R. Ambedkar: I think he has misread the article. I  am
sorry I do not have the Draft Constitution with me. "Except in so far as  he
is by or under this Constitution," those are the words. If  the  words  were
"except whenever he thinks that he should exercise this power of  discretion
against the wishes or against the advice of the  ministers",  then  I  think
the criticism made by my honourable Friend Pandit  Kunzru  would  have  been
valid. The clause is a very limited clause; it says: "except in  so  far  as
he is by or under this Constitution". Therefore, article 143  will  have  to
be read in conjunction with such other articles which  specifically  reserve
the power to the Governor. It is not a general clause  giving  the  Governor
power to disregard the advice of his ministers in any  matter  in  which  he
finds he ought to disregard.  There,  I  think,  lies  the  fallacy  of  the
argument of my honourable Friend, Pandit Kunzru. (Emphasis is given by me).

Therefore, as I said, having stated that there is nothing incompatible  with
the retention of the discretionary power in the Governor in specified  cases
with the system of responsible Government, the  only  question  that  arises
is, how should we provide for the mention of this  discretionary  power?  It
seems to me that there are three ways by which this could be done.  One  way
is to omit the words from  article  143  as  my  honourable  Friend,  Pandit
Kunzru, and others desire and to add to such articles  as  175,  or  188  or
such other provisions which the House may hereafter introduce,  vesting  the
Governor with the discretionary power, saying notwithstanding  article  143,
the Governor shall have this or that power. The other way would  be  to  say
in article 143, "that except as provided in articles so and so  specifically
mentioned-articles 175, 188, 200 or whatever they are". But the point  I  am
trying to submit  to  the  House  is  that  the  House  cannot  escape  from
mentioning in some manner that the Governor shall have discretion.

Now the matter which seems to find some kind of favour  with  my  honourable
Friend, Pandit Kunzru and those who have spoken in the same way is that  the
words should be omitted from here and should be transferred  somewhere  else
or that the specific articles should be mentioned in article 143.  It  seems
to me that this is a mere method  of  drafting.  There  is  no  question  of
substance and no question of principle. I personally myself would  be  quite
willing to amend the last portion of clause (1) of article 143 if I knew  at
this stage what are the provisions that this Constituent  Assembly  proposes
to make with regard to  the  vesting  of  the  Governor  with  discretionary
power. My difficulty is that we have not as yet come either to  article  175
or 188 nor have we exhausted  all  the  possibilities  of  other  provisions
being made, vesting the Governor with discretionary power. If I  knew  that,
I would very readily agree to amend article 143 and to mention the  specific
article, but that cannot be done now. Therefore, my submission  is  that  no
wrong could be done if the words as they stand  in  article  143  remain  as
they are. They are certainly not inconsistent.

Shri H. V. Kamath: Is there no material  difference  between  article  61(1)
relating to the President vis-à-vis his ministers and this article?

The Honourable Dr. B. R. Ambedkar: Of course there is,  because  we  do  not
want to vest  the  President  with  any  discretionary  power.  Because  the
provincial Governments are required to work in subordination to the  Central
Government,  and  therefore,  in  order  to  see  that  they   do   act   in
subordination to the Central Government the Governor  will  reserve  certain
things in order to give the President the opportunity to see that the  rules
under which the provincial Governments are supposed to act according to  the
Constitution  or  in   subordination   to   the   Central   Government   are
observed.”[40]

19.   On the basis of  the  above  discussion,  Article  143  of  the  draft
Constitution  was  approved  as  it  is  and  is  now  Article  163  in  the
Constitution.
Conclusions on Article 163 of the Constitution

20.   The sum and substance of the historical background leading to  Article
163 of the Constitution, as enacted, is this: (i) The Council  of  Ministers
will aid and advise the Governor in the exercise of his functions.  This  is
the first part of Article 163 (1) of the  Constitution.  The  Governor  then
has two options – (a) To reject  the  aid  and  advice  of  the  Council  of
Ministers and act in “his individual judgment”. This is an illusory and non-
existent option since the Constitution does not permit it.  (b)  To  act  on
the aid and advice of the Council of Ministers. By default this is the  only
real option available to him. (ii) If the exercise  of  function  is  beyond
the purview of the aid and advice of the Council of Ministers but is  by  or
under the Constitution, the Governor can act “in  his  discretion”.  Article
163(2) of the Constitution will have reference only  to  the  last  part  of
Article 163(1) of the Constitution and is not all-pervasive.
21.   If there is a break-down in  communications  between  the  Council  of
Ministers and  the  Governor  (as  imagined  by  Mr.  Churchill),  then  the
Governor will not have the benefit of the aid and advice of the  Council  of
Ministers. In that event, the Governor may “take the  matter  into  his  own
hands and act freely.” The break-down of communications  was  a  possibility
under the  Government  of  India  Act,  1935  since  it  was  “in  the  main
undemocratic” and there could be a break-down of communications between  the
representative of His Majesty and the  Council  of  Ministers.  However,  if
such a situation were to arise today in independent India, namely, a  break-
down of communications between the Governor of a State and  the  Council  of
Ministers, it would be most unfortunate and detrimental  to  our  democracy.
In the unlikely event  of  a  complete  break-down  of  communications,  the
President can and must intervene to bring in constitutional order.
Historical background of Article 174 of the Constitution

22.   Article 174(1) of  the  Constitution  has  its  historical  origin  in
Section 62 of the Government of India  Act,  1935.  This  section  reads  as
follows:
62. (l) The Chamber or Chambers of  each  Provincial  Legislature  shall  be
summoned to meet once at least in every year, and twelve  months  shall  not
intervene between their last sitting in one session and the  date  appointed
for their first sitting in the next session

(2) Subject to the provisions of this  section,  the  Governor  may  in  his
discretion from time to time-
(a) summon the Chambers or either Chamber to meet at such time and place  as
he thinks fit ;
(b) prorogue the Chamber or Chambers;
(c) dissolve the Legislative Assembly.

(3) The Chamber or Chambers shall be summoned to meet for the first  session
of  the  Legislature  on  a  day  not  later  than  six  months  after   the
commencement of this Part of this Act.

23.   In the Government of India Act, 1935 the Governor of  a  Province  had
vast powers, including for example, the power to preside over a  meeting  of
the Council of Ministers.[41]  However, for the present purposes it  is  not
necessary to research into that issue since it  is  quite  clear  that  with
Independence,   the   executive   and   other    powers,    functions    and
responsibilities of the Governor earlier appointed by His Majesty needed  an
overhaul.  This is what Article 153 of  the  draft  Constitution  sought  to
achieve.
24.   In the Constituent Assembly, Article 153 of the draft Constitution  as
on 21st February, 1948 substituted Section 62 of  the  Government  of  India
Act, 1935 with the following:
153. (1) The House or Houses of  the  Legislature  of  the  State  shall  be
summoned to meet twice at least in every year,  and  six  months  shall  not
intervene between their last sitting in one session and the  date  appointed
for their first sitting in the next session.

(2) Subject to provisions of this article, the Governor  may  from  time  to
time –
(a) summon the House or either House to meet at such time and  place  as  he
thinks fit;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.

(3) The functions of the Governor under sub-clauses (a) and  (c)  of  clause
(2) of this article shall be exercised by him in his discretion.

25.   The expression “in his discretion” finds  mention  in  clause  (3)  of
Article 153 of the draft Constitution. It could be said, on a  consideration
of the debate on this  expression  in  the  House  of  Commons  and  in  the
Constituent Assembly, that the Governor’s powers under Article  153  of  the
draft Constitution were sought  to  be  kept  outside  the  purview  of  the
Council of Ministers and exercisable “in his discretion”.  In  other  words,
it could be said that while exercising his powers under Article 153  of  the
draft Constitution, the Governor was not obliged to consult or take the  aid
and advice of his Council of Ministers.
26.   This Article was very briefly debated in the Constituent  Assembly  on
2nd June, 1949 and Dr. Ambedkar moved for the  omission  of  clause  (3)  in
this Article. The amendment proposed by Dr.  Ambedkar  was  adopted  without
much discussion. Thereby, the Governor was disentitled  from  summoning  the
House or either House “in his discretion”. Article 153 as amended  was  then
adopted and formed a part of the Constitution. What was the reason for  this
omission? The answer is to be found in the  debate  on  Article  69  of  the
draft Constitution on 18th May, 1949 (to which a reference was made  in  the
debates).
27.   Article 69 of the draft  Constitution  is  more  or  less  similar  to
Article 153 of the draft Constitution [except as regards the omitted  clause
(3)] and it provides as follows:
69. (1) The Houses of Parliament shall be summoned to meet  twice  at  least
in every year, and  six  months  shall  not  intervene  between  their  last
sitting in one session and the date appointed for  their  first  sitting  in
the next session.

(2) Subject to provisions of this article, the President may  from  time  to
time –
(a) summon the Houses or either House of Parliament to  meet  at  such  time
and place as he thinks fit;
(b) prorogue the Houses;
(c) dissolve the House of the People.

28.    During  the  course  of  the  debate  on  Article  69  of  the  draft
Constitution,  Prof.  K.T.  Shah  suggested  two  amendments.  Dr.  Ambedkar
responded to the amendments  proposed  by  stating,  inter  alia,  that  the
business of the House has to  be  provided  by  the  Executive  and  if  the
President does not summon the House, the necessary implication is  that  the
Executive has no  business  to  place  before  the  House  for  transaction.
Therefore, if anybody other than the Prime Minister required  the  President
to summon the House, there would be no business to  transact  and  summoning
the House without any business to transact would be a  futile  operation.  I
would imagine that for the  same  reason,  the  President  cannot  suo  moto
summon the House, for there would be no business to transact  and  suo  moto
summoning the House without any business to transact would also be a  futile
operation. On the  other  hand,  if  the  Prime  Minister  proposed  to  the
President to summon the Legislature and he did  not  do  so,  the  President
would be violating the Constitution and would need to be displaced. This  is
what Dr. Ambedkar said:
“Then I take the two other amendments of Prof. Shah (Nos.  1473  and  1478).
The amendments as they are worded are rather complicated. The  gist  of  the
amendments is this. Prof. Shah seems to think that the  President  may  fail
to summon the Parliament either in ordinary times  in  accordance  with  the
article or that he may not even summon the  legislature  when  there  is  an
emergency. Therefore he says that the power to summon the legislature  where
the President has failed to perform his duty must be vested  either  in  the
Speaker of the lower House or in the Chairman or the Deputy Chairman of  the
Upper House. That is, if I have understood it correctly, the proposition  of
Prof. K.T. Shah. It seems to me that here  again  Prof.  Shah  has  entirely
misunderstood the whole position. First of all, I do not understand why  the
President should fail to perform an obligation which has been  imposed  upon
him by law. If the  Prime  Minister  proposes  to  the  President  that  the
Legislature be summoned and the President, for  no  reason,  purely  out  of
wantonness or cussedness, refuses to summon it, I think we have already  got
very good remedy in our own Constitution to displace such  a  President.  We
have the right to impeach him, because such a refusal on  the  part  of  the
President to perform obligations which have been imposed upon him  would  be
undoubtedly violation of the Constitution. There is therefore  ample  remedy
contained in that particular clause.

But, another difficulty arises  if  we  are  to  accept  the  suggestion  of
Professor K.T. Shah. Suppose for instance the  President  for  good  reasons
does not summon the Legislature and the Speaker and the Chairman  do  summon
the Legislature. What is going to happen? If the President does  not  summon
the Legislature it means that  the  Executive  Government  has  no  business
which it can place before the House for transaction. Because,  that  is  the
only ground on which the President, on the advice  of  the  Prime  Minister,
may not call the Assembly  in  session.  Now,  the  Speaker  cannot  provide
business for the Assembly, nor can the Chairman  provide  it.  The  business
has to be provided by the Executive, that is to say, by the  Prime  Minister
who is going to advise the President to summon the  Legislature.  Therefore,
merely to give the power to the  Speaker  or  the  Chairman  to  summon  the
Legislature without making proper provisions for the placing of business  to
be transacted by such an Assembly called for in a session by the Speaker  or
the Chairman would to my  mind  be  a  futile  operation  and  therefore  no
purpose will be served by accepting that amendment.”[42]

29.   Keeping the debate on Article 69 of the  draft  Constitution  in  mind
(particularly since the business of the House  is  to  be  provided  by  the
Executive) Article 153 of the draft Constitution did  not  provide  for  any
discretion to the Governor, as proposed  by  Dr.  Ambedkar,  to  summon  the
House for a “futile operation”.
30.   Article 69 of the draft Constitution was adopted as Article 85 of  the
Constitution and this reads as follows:
“85. Sessions of Parliament, Prorogation and dissolution -  (1)  The  Houses
of Parliament shall be summoned to meet twice at least in  every  year,  and
six months shall not intervene between their last  sitting  in  one  session
and the date appointed for their first sitting in the next session.

(2) Subject to the provisions of clause (1), the President may from time  to
time -
(a) summon the Houses or either House to meet at such time and place  as  he
thinks fit;
(b) prorogue the Houses;
(c) dissolve the House of the People.”

31.   Similarly, Article 153  of  the  draft  Constitution  was  adopted  as
Article 174 of the Constitution in the following form:
“174. Sessions of the State Legislature, Prorogation and dissolution  -  (1)
The House or Houses of the Legislature of the State  shall  be  summoned  to
meet twice at least in every  year,  and  six  months  shall  not  intervene
between their last sitting in one session and the date appointed  for  their
first sitting in the next session.

(2) Subject to the provisions of clause (1), the Governor may from  time  to
time –
(a) summon the House or either House to meet at such time and  place  as  he
thinks fit ;
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.”

32.   The absence of any discretion in the President to summon  or  prorogue
the House or dissolve the House of the People and  the  deletion  of  clause
(3) in Article 153 of the draft Constitution makes it quite clear  that  the
President and the Governor can act under Article 85 of the Constitution  and
Article 174 of the Constitution respectively only on the aid and  advise  of
the Council of Ministers. No independent authority is given  either  to  the
President or the Governor in this regard.
Need to amend Article 85 and Article 174 of the Constitution

33.   As luck would have it, the  then  Members  of  Parliament  took  their
parliamentary duties and obligations with utmost sincerity  and  seriousness
and so the actual working of Article  85  of  the  Constitution  posed  some
problems. This led to the First Amendment to the Constitution.
34.   The parliamentary debate  of  16th  May,  1951  shows  that  when  the
Constitution (First Amendment) Bill was moved by Prime  Minister  Jawaharlal
Nehru, he pointed out that Parliament had been in continuous  session  since
November (1950) and  the  session  was  likely  to  carry  on.  Under  these
circumstances,  some  “acute  interpreters”  might  hold   the   view   that
Parliament had not met in 1951 strictly in terms of the  Constitution  since
Parliament had not been prorogued and the President had  not  addressed  it.
This would lead to a curious situation that if Parliament met  continuously,
then it could be interpreted that Parliament had not met  at  all!  This  is
what he said:
“[O]ne of the articles - for the moment - I forget the number  -  lays  down
that this House should meet twice a year and the  President  should  address
it.  Now a possible interpretation of that is that this House  has  not  met
at all this year.  It is an extraordinary  position  considering  that  time
this House has labored more than  probably  at  any  time  in  the  previous
history of this or the preceding Parliament in this country.  We  have  been
practically sitting with an interval round about Xmas since November and  we
are likely to carry on and yet it may be held  by  some  acute  interpreters
that we have not met at all this year strictly in terms of the  Constitution
because we started meeting in November and we have not met again  -  it  has
not been prorogued - the President has not addressed Parliament  this  year.
Put it in the extreme way, suppose this House met for the full year  without
break except short breaks, it worked for 12 months,  then  it  may  be  said
under the strict letter of the law that is has not met  at  all  this  year.
Of course that article was mean not to come in the way of our  work  but  to
come in the way of our leisure.  It was indeed meant and  it  must  meet  at
least twice a year and there should not be more than  six  months’  interval
between the meetings.  It did not want any Government of the day  simply  to
sit tight without the House meeting.  Therefore it wanted to  compel  it  by
the force of the Constitution and meet at least twice a year but  without  a
big gap.  That again by interpretation leaves the curious situation that  if
you continue meeting, you do not meet at all!”[43]

35.   When Prime Minister Jawaharlal Nehru replied to  the  debate  on  this
aspect on 2nd June, 1951 he reiterated that according to the strict  meaning
of Article 85 of the Constitution, Parliament had not “met” at all  in  1951
since it had been summoned in 1950. It was to overcome this difficulty  that
an amendment was proposed to Article 85  of  the  Constitution.  In  another
context, it was pointed out that Article 85 of the Constitution  raises  the
questions – who should summon Parliament; who can summon Parliament and  who
only can  summon  Parliament.  Giving  a  reply,  he  said  that  under  the
Constitution, only the President can summon Parliament and if  he  does  not
do  his  duty,  then  other  consequences  may  well  arise.  Similarly,  if
Parliament is not summoned within six months, it is a deliberate  breach  of
the Constitution by the President and the Government of the day. It must  be
presumed  that  some  final  authority  will  function  according   to   the
Constitution and if it does not “then you pick  the  axe  and  cut  off  the
head, whether he is a President or anybody.” This is what was said by  Prime
Minister Jawaharlal Nehru:
“It was because of this actual difficulty, that it  was  thought  that  this
article might be changed so that this question of  being  summoned  twice  a
year need not be there, because if we are meeting all the time, then are  we
to break up simply to be summoned again?  Of  course,  we  may  be  summoned
twice a year or more…………

That is to say, this article 85 actually  deals,  in  the  passive  and  the
active, in both the voices, with who should summon, who can summon  and  who
only can summon - there is no other authority which can  summon,  unless  of
course there is a breach of the Constitution  and  other  things  come  into
play.  Therefore, as the Constitution is, it is only the President  who  can
summon  it,  and  if  the  President  does  not  do  his  duty  then   other
consequences may well arise. ………

………… [O]ur saying, “the President shall summon” is much  more  mandatory  on
the President than saying, as it is said here,  “The  Houses  of  Parliament
shall be summoned” and the President shall do so.  The meaning is  the  same
but if the President does not summon within six months it  is  a  deliberate
breach of the Constitution by the President and the Government of  the  day.
It does not require any argument - you catch  him  immediately  he  has  not
done a duty laid down, which is here an indirect duty.  May  be  some  minor
excuse the President may advance, or not.  Therefore, in a  sense  you  bind
down the President - and when I say the President I mean the  Government  of
the day which is also bound down by the Constitution to do a certain  thing.
  If  they  do  not  do  it  then  other  consequences  follow.  They   have
deliberately flouted the  Constitution.   What  happens  then?   Well,  many
things may happen.  Parliament then presumably comes into conflict with  the
usurping Government, or the Government that carries on without the  goodwill
of Parliament and the people.  Well, a conflict  occurs.   That  kind  of  a
thing  would,  if  it  occurs,  presumably  be   decided   by   the   normal
constitutional means - other means may come into play, one  does  not  know.
……..

………… After all you have ultimately to have some final  authority  which  you
presume will function according to the Constitution.  If it  does  not  then
you pick the axe and cut  off  the  head,  whether  he  is  a  President  or
anybody.  That is the normal practice in Constitutions: that is  the  normal
practice in  revolutions.  I  do  not  understand  the  middle  practice  of
confusing  a  Constitution  with  a  revolution  and  a  revolution  with  a
Constitution.  I therefore, submit that the wording suggested is  the  right
wording.  It does not endanger  the  Constitution;  it  does  not  give  any
special or additional powers to the President to  come  in  the  way.   Such
powers as he gets, such mischief  as  the  future  President  might  do,  is
always inherent in the nature of things and inherent also in  the  power  of
the people to  put  an  end  to  the  President  who  does  that  mischief.”
(Emphasis is given by me).[44]

36.   The amendment proposed by Prime Minister  Jawaharlal  Nehru  was  then
accepted and Article 85 of the Constitution was amended to read as follows:
“85.  Sessions  of  Parliament,  prorogation  and  dissolution  -  (1)   The
President shall from time to time summon each House of  Parliament  to  meet
at such time and place as he thinks fit, but six months shall not  intervene
between its last sitting in one session  and  the  date  appointed  for  its
first sitting in the next session.

(2) The President may from time to time -
(a) prorogue the Houses or either House;
(b) dissolve the House of the People.”


37.   The corresponding provision  for  the  Legislative  Assembly  for  the
States (Article 174 of the Constitution) was amended to read as follows:
“174. Sessions of the State Legislature, prorogation and dissolution  -  (1)
The Governor shall from time to time summon the House or each House  of  the
Legislature of the State to meet at such time and place as  he  thinks  fit,
but six months shall not intervene between its last sitting in  one  session
and the date appointed for its first sitting in the next session.

(2) The Governor may from time to time -
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly.”


38.   Although no authority other than the President or the  Governor  could
summon the House, no discretion was conferred on either of them  to  do  so,
on his own or suo moto. Clearly, therefore, the President  or  the  Governor
can summon the  House  only  on  the  aid  and  advice  of  the  Council  of
Ministers.
Conclusions on Article 174 of the Constitution

39.   The historical background and the debates pertaining  to  Article  174
(and Article 85) of the Constitution lead to the conclusion that it is  only
the Governor who may summon  the  Legislative  Assembly,  but  only  on  the
advice of the Council of  Ministers and not suo moto. In  other  words,  the
Governor cannot summon the Legislative Assembly “in his discretion”. If  the
Governor does so, there would be no business to transact and  summoning  the
House in such a situation would be a futile operation. The  Governor  cannot
manufacture any business for the House  to  transact,  through  a  so-called
message or otherwise.  If the Governor disregards the advice of the  Council
of Ministers for summoning the House, necessary consequences  would  follow.
In this regard, it may be mentioned that if  the  President  disregards  the
advice of the Council of Ministers he can impeached. As far as the  Governor
is concerned, if he disregards the advice of the Council  of  Ministers  the
pleasure of the President can be withdrawn since the Governor  holds  office
during his pleasure. On a different note, if the Legislative  Assembly  does
not meet once in six months, there would be a  breach  of  the  Constitution
requiring severe sanction.
40.   How do the decisions of this Court interpret these provisions  of  the
Constitution and is the interpretation in harmony with the intention of  the
Constitution framers?
Decisions of this Court

41.   The first decision that needs to be  referred  to  is  Rai  Sahib  Ram
Jawaya Kapur v. The State of Punjab.[45]  The  Constitution  Bench  of  this
Court acknowledged the difficulty in framing  an  exhaustive  definition  of
‘executive function’ or ‘executive  power’.  While  acknowledging  that  the
separation of powers in our Constitution is not rigid, this  Court  observed
that one organ of the  State  cannot  assume  the  functions  or  powers  of
another organ. It was held:
“It may not be possible to frame an exhaustive definition of what  executive
function means and implies. Ordinarily  the  executive  power  connotes  the
residue  of  governmental  functions  that  remain  after  legislative   and
judicial functions are taken away. The Indian Constitution  has  not  indeed
recognised the doctrine of separation of powers  in  its  absolute  rigidity
but the functions of the different parts or branches of the Government  have
been sufficiently differentiated and consequently it can very well  be  said
that our Constitution does not contemplate assumption, by one organ or  part
of the State, of functions that essentially belong to another.”

42.   Proceeding further in this regard, the functions and  responsibilities
of the Executive were briefly mentioned in the following words:
“Our Constitution, though federal in  its  structure,  is  modelled  on  the
British Parliamentary system where the  executive  is  deemed  to  have  the
primary responsibility for the formulation of governmental  policy  and  its
transmission into law though the condition  precedent  to  the  exercise  of
this responsibility is its  retaining  the  confidence  of  the  legislative
branch  of  the  State.  The   executive   function   comprises   both   the
determination of the policy as well as carrying it into execution.”

43.   With reference to  the  interplay  between  the  Legislature  and  the
Executive, this Court acknowledged the supremacy  of  the  Legislature  over
the Executive and held  that,  under  the  Constitution,  the  Governor  who
exercises executive power is nevertheless a formal  or  constitutional  head
of the Executive, with the real executive power vested  in  the  Council  of
Ministers. This is what was said:
“In India, as in England, the executive has to act subject  to  the  control
of the legislature; but in  what  way  is  this  control  exercised  by  the
legislature? Under article 53(1) of our Constitution,  the  executive  power
of the Union is vested in the President but under article 75 there is to  be
a Council of Minister with the Prime Minister at the head to aid and  advise
the President in the exercise of his functions. The President has thus  been
made a  formal  or  constitutional  head  of  the  executive  and  the  real
executive powers are vested in  the  Ministers  or  the  Cabinet.  The  same
provisions obtain in regard to the Government of  States;  the  Governor  or
the Rajpramukh, as the case may be, occupies the position  of  the  head  of
the executive in the State but it is virtually the Council of  Ministers  in
each  State  that  carries  on  the  executive  Government.  In  the  Indian
Constitution, therefore, we have the same system of parliamentary  executive
as in England and the Council of Ministers consisting, as it  does,  of  the
members of the legislature is, like the British  Cabinet,  “a  hyphen  which
joins, a buckle which fastens the legislative  part  of  the  State  to  the
executive part.” The Cabinet  enjoying,  as  it  does,  a  majority  in  the
legislature concentrates in itself the virtual control of  both  legislative
and executive functions; and as the Ministers constituting the  Cabinet  are
presumably agreed on fundamentals and act on  the  principle  of  collective
responsibility, the most important questions of policy  are  all  formulated
by them.”

44.   The significance of this view is that it recognized that the  Governor
is only a formal  or  constitutional  head.  His  executive  functions  are,
therefore, dependent  on  the  aid  and  advice  given  by  the  Council  of
Ministers. Since there is no provision enabling the Governor to act in  “his
individual judgment” the Governor is bound by the advice of the  Council  of
Ministers with whose  aid  he  acts.  This  is  completely  in  harmony  and
consonance with the views of the Constituent Assembly. Moreover, there is  a
recognition and acceptance that since the  Council  of  Ministers  enjoys  a
majority in the Legislature, it is in virtual control of both the  executive
and legislative functions of  the  Governor.  Therefore,  the  Governor  has
little or no authority over the Executive or the Legislature, except to  the
extent specifically provided for in the Constitution.
45.   Soon after the decision rendered in Rai  Sahib  Ram  Jawaya  Kapur,  a
rather peculiar situation arose in  the  Calcutta  High  Court.  In  Mahabir
Prasad  Sharma  v.  Prafulla  Chandra  Ghose[46]  the  facts   were   rather
complicated.  However, to briefly summarize them it may be  stated  that  in
the perception of the Governor of  the  State,  Chief  Minister  Ajoy  Kumar
Mukherjee had apparently lost the confidence of  the  Legislative  Assembly.
Accordingly,  the  Governor  requested  the  Chief  Minister  to  call   the
Legislative Assembly  and  prove  his  majority  in  the  House.  The  Chief
Minister was more than once requested to call the  Legislative  Assembly  in
the month of November, 1967 but he declined to do so, on the ground that  it
had been decided to call the Legislative Assembly on 18th December, 1967.
46.   In view of the Chief Minister’s recalcitrance, the Governor  dismissed
him and his Council of Ministers on 21st November, 1967 and  appointed  P.C.
Ghose as the Chief Minister.  The dismissal of the Chief  Minister  and  the
appointment of P.C. Ghose by the  Governor  were  in  apparent  exercise  of
powers conferred by Article 164(1) of the Constitution.
47.   A petition was filed in the Calcutta High Court  for  a  writ  of  quo
warranto to explain the legal basis for the appointment  of  P.C.  Ghose  as
the Chief Minister. In this context, it was observed that the  dismissal  of
Ajoy Kumar Mukherjee as the Chief Minister was beyond the scope of the  writ
application and that the validity of the dismissal arose only  incidentally.
However, it was later held in the judgment  that  a  Minister  holds  office
during the pleasure  of  the  Governor  and  under  Article  164(1)  of  the
Constitution the withdrawal of pleasure is entirely the  discretion  of  the
Governor and in view of Article 163(2) of the Constitution that exercise  of
discretion cannot be questioned. As far as the appointment of P.C. Ghose  is
concerned, it was held that there was no  restriction  on  the  Governor  in
Article 164(1) of the Constitution in the matter of the appointment  of  the
Chief Minister.
48.   The High Court also took the view that if the Chief Minister  and  the
Council of Ministers refuse to vacate office after the Legislative  Assembly
had expressed no confidence in them, the Governor is  entitled  to  withdraw
his pleasure under Article 164(1) of the Constitution. It was held that  the
power  of  the  Governor  in  this  regard  is   exclusive,   absolute   and
unrestricted and cannot be called in question in view of Article  163(2)  of
the Constitution.   The  High  Court  also  held  that  if  the  Council  of
Ministers lost its majority in the Legislative Assembly,  the  Governor  was
not bound to accept its advice. In this regard,  the  High  Court  observed:
“Can it be said that the Governor is bound to act,  in  appointing  a  Chief
Minister, on the advice of the outgoing Chief  Minister  who  has  lost  his
majority in the Legislative Assembly as a result of the General Election?  I
think not.”  In  view  of  its  findings,  the  High  Court  held  that  the
appointment of P.C. Ghose as the Chief Minister was in accordance  with  law
and the Constitution and could not be called in question.
49.   It may be mentioned that a submission was made in the High Court  that
in the event of a deadlock between the Governor and the  Chief  Minister,  a
proclamation in terms of Article 356 of the Constitution could be issued  by
the President but that line of thought was not carried forward by  the  High
Court.
50.   In some respects the decision of the Calcutta  High  Court  goes  well
beyond the law laid down by this Court in Rai Sahib Ram Jawaya  Kapur.  Some
of the conclusions are in the nature of sweeping generalizations and  in  my
opinion Mahabir Prasad Sharma does not lay down the correct  law.  I  am  in
agreement with  Justice  Khehar  in  this  regard.   Mahabir  Prasad  Sharma
confers excessive powers on the  Governor,  well  beyond  his  status  as  a
formal or constitutional head of the Executive. The  decision  also  enables
the Governor to unilaterally decide whether a Chief Minister  has  lost  the
majority of the Legislative Assembly or not, a function exclusively  of  the
Legislative  Assembly.  The  decision  enables  the  Governor  to  take   an
unchecked decision “in his discretion” that a Chief Minister  has  lost  the
majority of the Legislative Assembly and then dismiss him.
51.   Reference may now be made to State of Punjab v. Satya Pal Dang[47]  in
which the facts were rather extraordinary.  Briefly, the  annual  budget  of
the State  was  to  be  considered  by  the  Legislative  Assembly  and  the
Financial Statement was discussed in  the  Assembly  on  4th,  5th  and  6th
March, 1968.  On the last day, following some disturbance in the  House  and
consequent  disciplinary  action,  a  Resolution  was  moved  expressing  no
confidence in the Speaker.  The House granted leave for the  discussion  and
adjourned for the next day.
52.   On 7th March, 1968 the Speaker declared the motion  of  no  confidence
to be unconstitutional and deemed not to have been  moved.   Following  some
rowdy scenes, the Speaker then adjourned the Assembly for  two  months  that
is till 6th  May,  1968.   Since  the  annual  budget  was  not  adopted  no
expenditure could be made in the State from 1st April, 1968. This led  to  a
political and financial crisis of sorts.
53.   Under these peculiar and  extraordinary  circumstances,  the  Governor
prorogued  the  Assembly  on  11th  March,   1968   in   exercise   of   his
“constitutional powers” under Article  174(2)(a)  of  the  Constitution.  On
13th  March,  1968  the  Governor   promulgated   The   Punjab   Legislature
(Regulation of Procedure  in  relation  to  Financial  Business)  Ordinance,
1968. Thereafter, on 14th March, 1968 the  Governor  summoned  the  Assembly
for 18th March, 1968  in  exercise  of  his  ‘constitutional  powers’  under
Article 174(1) of the Constitution and directed the  Assembly,  in  exercise
of his ‘constitutional powers’ under Article 175(2) of the Constitution,  to
consider certain items.
54.   When the Assembly met, the  Speaker  ruled  that  the  House  was  not
prorogued on 11th March, 1968 but on 18th March, 1968  and  ruled  that  the
proclamation of the Governor dated 14th March, 1968 summoning the House  was
illegal and void and that he had  no  power  to  re-summon  the  House  once
adjourned.  Therefore, in accordance  with  the  earlier  ruling  dated  7th
March, 1968 the House stood adjourned for two months from that date.
55.   Thereafter, following some  disturbance,  uproar  and  furore  in  the
House, the Deputy Speaker occupied the  Speaker’s  chair  and  declared  the
adjournment by the Speaker null and void. The financial  business  was  then
transacted and completed and two Appropriation  Bills  and  other  financial
demands were passed.  The Governor gave  his  assent  to  the  Appropriation
Bills.
56.   Two writ petitions were filed in  the  Punjab  &  Haryana  High  Court
challenging, inter alia, the prorogation and re-summoning of  the  Assembly,
the Ordinance issued by the Governor on 13th March,  1968  as  well  as  the
Appropriation Acts to which the Governor  had  given  his  assent.   A  Full
Bench of the High Court unanimously held the  prorogation  and  re-summoning
of the Assembly to be regular and legal and that the two Appropriation  Acts
were unconstitutional and held by  majority  that  the  Ordinance  was  also
unconstitutional.
57.   The decision of the High Court  was  the  subject  matter  of  appeals
before this Court. It was observed that the Governor had two options  before
him: (a) To  require  the  Ministers  to  ask  the  Speaker  to  recall  the
Assembly. This Court felt that this was attempting  the  impossible  [break-
down theory in play] and (b) To prorogue the  Assembly  and  then  re-summon
it.
58.   Referring to Article 174(2) of the Constitution it was  held  that  it
does not indicate any restrictions on the power of the Governor to  prorogue
the House.  However, whether a  Governor  is  justified  in  proroguing  the
Legislature when it is in session is  a  question  that  did  not  fall  for
consideration.  What was more in question than the conduct of  the  Governor
was the bona fides of the Speaker’s ruling adjourning the Assembly  for  two
months when the Financial Statement and the Budget were on  the  agenda  and
time was running out. No mala fides were attributed to the Governor and  his
power being untrammeled by the Constitution,  an  emergency  having  arisen,
the actions taken by the Governor were  perfectly  understandable.   It  was
also held that the Governor had not only acted  properly  but  in  the  only
constitutional way open to him and there was no abuse  of  power  nor  could
his motives be described as mala fide.
59.   This Court also held that  the  prorogation  of  the  Assembly  became
effective  on  11th  March,  1968  when  the  Governor   issued   a   public
notification.  It was also held that the  re-summoning  of  the  Legislature
immediately afterwards was also a step in the right direction and it set  up
once again the democratic machinery in  the  State  which  had  been  rudely
disturbed by the Speaker.  In  fact,  the  Governor  restored  parliamentary
Government by adopting the course that he did.
60.   However, while concluding its decision, this Court observed that  “The
situation created in the State of Punjab was unique and was  reminiscent  of
the happenings in the age of the Stuarts.”  Undoubtedly so.  The  action  of
the Governor was drastic but constitutional and resulted from  a  desire  to
set right a “desperate situation”.  This Court allowed the appeals  and  set
aside the judgment of the High Court and ordered the dismissal  of  the  two
writ petitions filed in the Punjab & Haryana High Court.
61.   The facts in Satya Pal Dang were unique and extraordinary, but  it  is
important to note that this Court did not consider or even refer to  Article
163 of the Constitution. Therefore, this decision really does not take  this
discussion much further and reference to it is really quite futile.
62.   The powers of the Governor, including his discretionary  powers,  came
up for consideration in Samsher Singh v. State of Punjab[48] which  decision
is of considerable importance. The question before a Bench of  seven  judges
was whether the Governor exercises his power of appointment and  removal  of
members of the  Subordinate  Judicial  Service  under  Article  234  of  the
Constitution[49] personally or on the aid  and  advice  of  the  Council  of
Ministers. The appellant Samsher Singh contended  that  the  Governor  could
exercise his power only personally and relied on Sardari  Lal  v.  Union  of
India[50] as well as Article 163(3) of the Constitution.
63.   Chief Justice A.N. Ray (speaking for himself and  four  other  learned
Judges) held that the expression  “in  his  discretion”  is  used  in  those
Articles of the Constitution that confer  special  responsibilities  on  the
Governor.  Reference was made to the deletion  of  the  expression  “in  his
discretion”  from  the  draft  Constitution  in  Articles  144(6)   [totally
omitted], 153(3) [now Article 174], 175 (proviso)  [now  Article  200],  188
[totally omitted], 285(1) and (2) [now Article 316] and paragraph  15(3)  of
the Sixth Schedule  [totally  omitted].  This  was  noted  to  be  in  stark
contrast to Articles 371-A(1)(b), 371-A(1)(d), 371-A(2)(b)  and  371-A(2)(f)
as well as paragraphs 9(2) and 18(3) [since deleted on 21st  January,  1971]
in  the  Sixth  Schedule  to   the   Constitution   which   confer   special
responsibilities  on  the  Governor  and  use   the   expression   “in   his
discretion”. In this context, it  was  concluded  in  paragraph  28  of  the
Report:
“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 his Council of Ministers save in spheres where  the
Governor is required by or under the Constitution to exercise his  functions
in his discretion.”

64.   Explaining this, and referring to English  constitutional  law,  which
is incorporated in our Constitution, it was held  in  paragraph  32  of  the
Report:
“It is a fundamental principle of English Constitutional law that  Ministers
must  accept  responsibility  for  every  executive  act.  In  England   the
Sovereign never acts on his own responsibility. The power of  the  Sovereign
is conditioned by the practical rule that the Crown must  find  advisers  to
bear responsibility for his action. Those advisers must have the  confidence
of the House  of  Commons.  This  rule  of  English  Constitutional  law  is
incorporated in  our  Constitution.  The  Indian  Constitution  envisages  a
Parliamentary and responsible form of Government at the Centre  and  in  the
States and not  a  Presidential  form  of  Government.  The  powers  of  the
Governor as the constitutional head are not different.”

A minor point of departure  was  noticed  in  paragraph  44  of  the  Report
wherein it was held that there is no distinction between  functions  of  the
Union (or State) and the functions of the President (or Governor) except  in
respect of those  functions  that  the  Governor  has  to  exercise  in  his
discretion.  This reads as follows:
“The distinction made by this Court between the executive functions  of  the
Union and the executive functions of the President  does  not  lead  to  any
conclusion that the President is not the constitutional head of  Government.
Article 74(1) provides for the Council of Ministers to aid  and  advise  the
President in the exercise of his functions.  Article  163(1)  makes  similar
provision for a Council  of  Ministers  to  aid  and  advise  the  Governor.
Therefore, whether the functions exercised by the  President  are  functions
of the Union or the functions of the  President  they  have  equally  to  be
exercised with the aid and advice of the Council of Ministers, and the  same
is true of the functions of the  Governor  except  those  which  he  has  to
exercise in his discretion.”

65.   In this background and context, it was noted that  when  the  Governor
exercises his functions and powers with the aid and advice  of  the  Council
of  Ministers,  he  does  so  by  making  rules  for  the  more   convenient
transaction and allocation of business in accordance with Article 166(3)  of
the Constitution. Consequently, the decision rendered  in  Sardari  Lal  was
required to be  overruled  (and  it  was  overruled)  and  it  was  held  in
paragraph 48 of the Report after referring to Rai Sahib Ram Jawaya Kapur:
“The President as well as the  Governor  is  the  constitutional  or  formal
head. The President as  well  as  the  Governor  exercises  his  powers  and
functions conferred on him by or under  the  Constitution  on  the  aid  and
advice of his Council of Ministers, save in spheres where  the  Governor  is
required by or under the Constitution  to  exercise  his  functions  in  his
discretion. Wherever the  Constitution  requires  the  satisfaction  of  the
President or the Governor for the exercise by the President or the  Governor
of any power or function, the satisfaction required by the  Constitution  is
not  the  personal  satisfaction  of  the  President  or  Governor  but  the
satisfaction of the President or Governor in  the  constitutional  sense  in
the Cabinet system of Government, that is, satisfaction of  his  Council  of
Ministers on whose aid and advice the President or  the  Governor  generally
exercises all his powers and functions. The  decision  of  any  Minister  or
officer under Rules of Business made under any of these two  Articles  77(3)
and 166(3) is the decision of the President or  the  Governor  respectively.
These articles did not provide for any delegation. Therefore,  the  decision
of a Minister or officer under the Rules of Business is the decision of  the
President or the Governor.”


66.   On the issue of discretionary powers of the Governor, paragraph 54  of
the Report is important and the shift in bearing responsibility is  referred
to in paragraph 55 of the Report in  the  context  of  Article  356  of  the
Constitution with the final decision on the report  of  the  Governor  being
with the  President  acting  on  the  aid  and  advice  of  his  Council  of
Ministers. In this overall context, it was, in  a  sense,  reiterated  that:
“The Constitution does  not  aim  at  providing  a  parallel  administration
within the State by allowing the Governor to go against the  advice  of  the
Council of Ministers.”
67.    Since  a  reference  was  earlier  made  to  Article  371-A  of   the
Constitution in the context of the discretionary powers of the Governor,  it
is necessary to mention that that Article was inserted in  the  Constitution
by the Constitution (Thirteenth Amendment) Act, 1962. What is  important  to
notice in the said Article is that the draftsman and  Parliament  maintained
the distinction between “in his discretion” and “his  individual  judgment”.
This is clear from the use of the expression “in  his  discretion”  in  some
paragraphs of the Sixth Schedule as mentioned  above  and  the  use  of  the
expression “his individual judgment” occurring  in  Article  371-A(1)(b)  of
the Constitution. Therefore, a distinction between “in his  discretion”  and
“his individual judgment” was recognized  and  appreciated.  Sadly,  as  the
submissions made before us indicate, this differentiation is  slowly  losing
ground as the framers of  the  Government  of  India  Act,  1935  presumably
foresaw and which was adverted to by Sir B.N. Rau.
68.   In their concurring judgment,  Justice  P.  N.  Bhagwati  and  Justice
Krishna Iyer endorsed the view (in paragraph 139 of  the  Report)  that  the
discretionary powers of the Governor have been expressly spelt  out  in  the
Constitution  (as  noticed  above)  and  also  endorsed  the  extension   of
‘discretion’  to  Article  356  of  the  Constitution.  The  learned  judges
observed that “limited free-wheeling” is available to the  Governor  in  the
choice of the Chief Minister and the dismissal of the  Ministry  (and  later
in paragraph 154 of the Report to the dissolution of the House).
69.   It appears that the “limited free-wheeling” concept is  based  on  the
discretion given to the Governor under Article 163(2) of  the  Constitution,
although it is not specifically discussed in the concurring judgment.
70.   Be that as it may, the learned judges observed that  if  the  Governor
was  held  entitled  to  exercise   his   powers   personally,   then   that
interpretation  would  extend  to  several  Articles  of  the  Constitution,
including the power to grant pardon  or  to  remit  or  commute  a  sentence
(Article 161), the  power  to  make  appointments  including  of  the  Chief
Minister (Article 164), the Advocate-General (Article 165), District  Judges
(Article 233), Members of the Public Service Commission (Article  316),  the
power  to  prorogue  either  House  of  Legislature  or  to   dissolve   the
Legislative Assembly (Article 174), the right to address  or  send  messages
to the Houses of the Legislature (Article 175 and Article  176),  the  power
to assent to Bills or withhold such assent (Article 200), the power to  make
recommendations for demands of grants [Article  203(3)],  and  the  duty  to
cause to be laid every year the annual budget (Article 202),  the  power  to
promulgate ordinances during recesses of the Legislature (Article 213),  the
obligation to make available to the Election Commission the requisite  staff
for discharging the functions conferred by Article 324(1) on the  Commission
[Article 324(6)], the  power  to  nominate  a  member  of  the  Anglo-Indian
Community to the Assembly in certain situations (Article 333) and the  power
to authorize the use of Hindi in the proceedings in the High Court  [Article
348(2)]. (One could add Article 239(2) of the Constitution  to  this  list).
It was held that if  the  ratio  of  Sardari  Lal  and  Jayantilal  Amritlal
Shodhan v. F.N. Rana[51] was made applicable :
“…….. to every function which  the  various  articles  of  the  Constitution
confer on the  President  or  the  Governor,  Parliamentary  democracy  will
become a dope and national  elections  a  numerical  exercise  in  expensive
futility. We  will  be  compelled  to  hold  that  there  are  two  parallel
authorities exercising powers of  governance  of  the  country,  as  in  the
dyarchy days, except that Whitehall is  substituted  by  Rashtrapati  Bhavan
and Raj Bhavan. The Cabinet  will  shrink  at  Union  and  State  levels  in
political and administrative authority and,  having  solemn  regard  to  the
gamut of his  powers  and  responsibilities,  the  Head  of  State  will  be
reincarnation of Her Majesty’s Secretary of State for India,  untroubled  by
even the British Parliament — a little taller in  power  than  the  American
President. Such a distortion, by interpretation, it  appears  to  us,  would
virtually amount to a subversion of the structure,  substance  and  vitality
of our Republic, particularly  when  we  remember  that  Governors  are  but
appointed functionaries and the President himself is elected  on  a  limited
indirect basis. As we have already indicated,  the  overwhelming  catena  of
authorities of this  Court  have  established  over  the  decades  that  the
cabinet form of Government and the Parliamentary system  have  been  adopted
in India and the contrary concept must be rejected  as  incredibly  allergic
to our political genius, constitutional creed and culture.”

71.   All the seven learned judges constituting the Bench were explicit  and
unequivocal in their view that the principle of  Cabinet  responsibility  is
firmly entrenched in our constitutional democracy and that our  Constitution
does not accept any “parallel administration” or  “dyarchy”.   A  fortiorari
the  discretion  available  to  the  Governor  under  Article  163  of   the
Constitution is not all-pervasive but is circumscribed by the provisions  of
the  Constitution,  with  a  small  ventilator  available,  in  some   given
exceptional situations by or under the Constitution.  In  this  context,  it
is interesting  to  note  that  this  Court  did  not  even  advert  to  the
comparatively recent decision rendered in Satya  Pal  Dang  which  virtually
sanctified the vast exercise of power by the Governor.  Therefore,  it  must
be assumed that Satya  Pal  Dang  should  be  confined  to  its  unique  and
extraordinary facts reminiscent of the happenings in the age of the  Stuarts
or did not necessarily lay down the correct law given the more than  blanket
powers of the Governor that that decision approved  or  had  nothing  to  do
with Article 163 of the Constitution.
72.   Pratapsingh Raojirao Rane v.  Governor  of  Goa[52]  was  yet  another
peculiar case in  which  the  Governor  dismissed  the  Chief  Minister  and
appointed  another  person  (Dr.  Wilfred  Anthony  D’Souza)  as  the  Chief
Minister of Goa in exercise of powers conferred by  Article  164(1)  of  the
Constitution. Both decisions were challenged by way of a  writ  petition  in
the Bombay High Court.
73.   In that case the Governor was of opinion that the Chief  Minister  had
lost the confidence of the Legislative  Assembly.  Accordingly,  he  sent  a
communication to the Chief Minister on 28th July, 1998 at  about  2.00  p.m.
requiring him to seek a vote of confidence  from  the  Legislative  Assembly
before 3.30 p.m. on the same day. In response, the Chief Minister  did  seek
a vote of confidence from the Legislative Assembly  and  was  successful  in
doing so. (There was some controversy about this).
74.   Notwithstanding the confidence expressed by the  Legislative  Assembly
in the Chief Minister, the Governor prorogued the  Assembly  at  about  8.35
p.m. on 29th July, 1998 and appointed Dr. D’Souza as the Chief  Minister  at
about 10.00 p.m.
75.   The questions before the High Court were whether the Governor had  the
power to  prorogue  the  Legislative  Assembly  and  to  dismiss  the  Chief
Minister. As regards the dismissal of the Chief Minister,  it  was  held  in
paragraph 37 of the Report that the Governor was entitled  to  exercise  his
individual discretion in appointing the Chief Minister  and  that  this  was
not subject to judicial review.  In coming  to  this  conclusion,  the  High
Court proceeded on the basis that the Governor could withdraw  his  pleasure
and thereby require the Chief Minister to vacate his office. The High  Court
referred to Mahabir Prasad Sharma and  concluded  that  if  the  Council  of
Ministers refused to vacate its office then the Governor could withdraw  his
pleasure and that withdrawal of pleasure by the Governor  was  not  open  to
judicial  review.  Carrying  this  a  little  further,  the  Court  held  in
paragraph 46 of the Report:
“Thus, the position  in  law  is  clear  that  the  Governor,  while  taking
decisions in his sole discretion, enjoys immunity under Article 361 and  the
discretion exercised by him in the performance of such  functions  is  final
in terms of Article 163(2). The position insofar as  the  dismissal  of  the
Chief Minister is concerned would be the same, since when the Governor  acts
in such a matter he acts in his sole discretion.  In  both  the  situations,
namely the appointment of the Chief Minister and the dismissal of the  Chief
Minister, the Governor is the best judge of the situation and  he  alone  is
in possession of the relevant information  and  material  on  the  basis  of
which he acts. The result, therefore, would be that such actions  cannot  be
subjected to judicial scrutiny at all.”

76.   The High Court did not address itself to the issue of  prorogation  of
the Legislative Assembly since in view of the above it  was  held  that  the
writ petition was not maintainable.
77.   This decision too proceeds on the incorrect basis and assumption  that
the Governor is the best person to know whether  the  Chief  Minister  of  a
State  has  lost  the  confidence  of  the  Legislative  Assembly  and   is,
therefore, entitled to exercise vast  powers  regarding  withdrawal  of  his
pleasure in dismissing the Chief  Minister  of  a  State.  To  this  extent,
Pratapsingh Raojirao Rane does not lay down the  correct  law  and  I  agree
with Justice Khehar in this regard.
78.   The interpretation of Article 163(2) of the  Constitution  again  came
up for consideration in  M.P.  Special  Police  Establishment  v.  State  of
M.P.[53] In that case the Lokayukta  had  given  a  report  that  there  was
sufficient ground for prosecuting  two  Ministers  for  offences  under  the
Prevention of Corruption Act, 1988  and/or  under  the  Indian  Penal  Code,
1860. The Council of Ministers of the State of Madhya  Pradesh  declined  to
grant sanction to prosecute, but the Governor disregarded the advice of  the
Council of Ministers and granted sanction to prosecute.  The  question  that
arose for consideration was whether a Governor could act in  his  discretion
under Article 163(2) of the Constitution and against the aid and  advice  of
the Council of Ministers  in  the  matter  of  grant  of  sanction  for  the
prosecution  of  two  Ministers  for  offences  under  the   Prevention   of
Corruption Act, 1988 and/or under the Indian Penal Code, 1860.
79.   Adding to the  exceptions  already  noted  by  this  Court  where  the
Governor could act despite the advice  of  the  Council  of  Ministers,  yet
another exclusionary situation was carved out by the  Constitution  Bench  -
in this case, on the ground of propriety. It was held:
“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  a  Minister
where as a matter of propriety the Governor may  have  to  act  in  his  own
discretion.”

80.   It was observed that in such a case, if the  Governor  cannot  act  in
his discretion then there could be a complete breakdown of the rule of  law.
It was observed (with respect, in  an  exaggerated  manner)  that  democracy
itself would be at stake. It was said:
“If, on these facts and circumstances, the Governor cannot act  in  his  own
discretion there would be a complete breakdown of the rule of  law  inasmuch
as it would then be open for Governments to  refuse  sanction  in  spite  of
overwhelming material showing that a prima facie case is made  out.  If,  in
cases where a prima facie case is clearly made out,  sanction  to  prosecute
high functionaries is refused or  withheld,  democracy  itself  will  be  at
stake. It would then lead to a situation where people  in  power  may  break
the law  with  impunity  safe  in  the  knowledge  that  they  will  not  be
prosecuted as the requisite sanction will not be granted.”

81.   The decision in the case of Pu Myllai Hlychho v. State of  Mizoram[54]
is equally instructive on the subject of  the  Governor’s  discretion  under
Article 163(2) of the Constitution. The  issue  related  to  the  Governor’s
discretion in  the  nomination  of  four  members  of  the  Mara  Autonomous
District Council (MADC) in terms of paragraph 2(1) read with  paragraph  20-
BB of the Sixth Schedule to the Constitution.[55]   It  was  held  that  the
Governor is entitled to act in his discretion in the  matter  of  nomination
of four members to the MADC  even  though  he  is  obliged  to  consult  the
Council of Ministers. In this case, the Governor did consult the Council  of
Ministers, but that advice was  not  binding  on  him.  Merely  because  the
Governor consulted the Council of Ministers and acted on  the  advice  given
does not fault the decision taken by the Governor in  the  exercise  of  his
discretion.  It was held:
“The counsel for the appellants contended that in the case of nomination  of
four members, the Governor accepted the advice of his Council  of  Ministers
and he did not exercise the discretionary powers vested in  him  under  para
20-BB of the Sixth Schedule. This contention was raised on  the  basis  that
the initiation for issuing the notification dated  6-12-2001  was  from  the
Council of Ministers and the Governor acted upon the advice of  the  Council
of Ministers. We do not  find  any  force  in  this  contention.  Under  the
provisions of  para  20-BB,  the  Governor  shall  consult  the  Council  of
Ministers. Merely because of the fact that the  Governor  made  consultation
with the Council of Ministers for nominating  four  members,  it  cannot  be
assumed that the Governor failed to exercise the discretionary  powers.  The
Governor could have even consulted the  District  Council  or  the  Regional
Council in this regard. There is nothing to show that the Governor  did  not
exercise his discretionary powers independently. Moreover, as  noted  above,
Article 163(2) of  the  Constitution  expressly  prohibits  challenging  the
validity of the exercise of such discretionary power.”

82.    State of Gujarat v. R.A. Mehta[56]  follows  the  view  expressed  in
Samsher Singh and M.P. Special Police  Establishment  on  the  discretionary
powers of the Governor and adds a few more illustrative exceptions to  those
mentioned in the above decisions. Primarily, the  view  taken  is  that  the
Governor can act in his  discretion  if  the  advice  from  the  Council  of
Ministers is not available to him due to some  extraordinary  situation.  It
was held:
“Article 163(2) of the Constitution provides that it  would  be  permissible
for the  Governor  to  act  without  ministerial  advice  in  certain  other
situations, depending upon the circumstances therein, even though  they  may
not  specifically  be  mentioned  in  the  Constitution   as   discretionary
functions e.g. the exercise of  power  under  Article  356(1),  as  no  such
advice will be available from the Council of Ministers, who are  responsible
for the breakdown of constitutional machinery, or  where  one  Ministry  has
resigned, and the other alternative Ministry  cannot  be  formed.  Moreover,
clause (2) of Article 163 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. There may  also
be  circumstances  where  there  are  matters  with  respect  to  which  the
Constitution does not specifically  require  the  Governor  to  act  in  his
discretion but the Governor, despite this, may be fully justified to act  so
e.g. the Council of Ministers may advise the Governor to dissolve  a  House,
which  may  be  detrimental  to  the  interests  of  the  nation.  In   such
circumstances, the Governor would be justified in  refusing  to  accept  the
advice rendered to him  and  act  in  his  discretion.  There  may  even  be
circumstances where ministerial advice is not  available  at  all  i.e.  the
decision regarding the choice of Chief Minister under Article  164(1)  which
involves choosing a Chief Minister after a fresh election, or in  the  event
of the death or resignation of the  Chief  Minister,  or  dismissal  of  the
Chief Minister who loses majority in the House and yet refuses to resign  or
agree to dissolution.”


83.   However, it  seems  to  me  that  the  Bench  might  be  incorrect  in
expanding the discretionary power to include the advice of  the  Council  of
Ministers “which may be detrimental to the interests  of  the  nation.”  For
one, it  is  difficult  to  imagine  a  democratically  elected  Council  of
Ministers giving advice that “may be detrimental to  the  interests  of  the
nation”. Secondly, who is to judge if the  advice  is  “detrimental  to  the
interests of the nation” and what are  the  standards  for  coming  to  this
conclusion. Thirdly, our Constitution has not given the  Governor  arbitrary
or imperial powers to decide what is or is not detrimental to the  interests
of the nation. The elected representatives are capable of taking that  call.
 Fourthly, should such a remarkable situation arise, the Governor  would  be
obliged to report to the President, leaving it to him to decide on the  next
course of action. However,  I  leave  this  ‘expansion’  as  it  is  and  am
mentioning it only by the way.
84.   As the years have gone by, more and more unusual if not  extraordinary
situations have arisen. These situations have led,  in  theory,  to  greater
discretionary powers being  conferred  on  the  Governor  through  decisions
rendered by this Court and the High Courts. In my view,  this  is  really  a
step backward and contrary to the idea of responsible  government  advocated
in the Constituent Assembly.
Justice Sarkaria Commission
85.   Be that as it may, August 1988 saw the release  of  what  is  commonly
known as the Justice Sarkaria Commission Report  on  Union-State  Relations.
In Chapter IV thereof, it is  noted  that  the  role  of  the  Governor  had
emerged as one of the key issues in  Union-State  relations.  While  dealing
with the historical background, two extremely significant observations  were
made in paragraphs 4.2.03 and 4.2.04 of the Report. It was  suggested  quite
clearly that: (i) The Congress Party  which  commanded  a  majority  in  six
Provincial Legislatures after the Government of India Act,  1935  came  into
force assumed office only after it was  assured  by  the  Viceroy  that  the
Governors “would not provoke a conflict with the  elected  Government.”  The
intention was pretty clear – that the discretion or the individual  judgment
available to the Governor under the Government of India Act, 1935  would  be
sparingly used, if at all. (ii) This intention was carried into effect  when
the India  (Provisional  Constitution)  Order,  1947  was  promulgated,  the
expressions ‘in his discretion’, ‘acting in his discretion’ and  ‘exercising
his individual judgement’ occurring in the Government  of  India  Act,  1935
were deleted making it incumbent on the Governor to exercise  his  functions
only on the aid and advice of his Council of Ministers.  This  is  what  the
Justice Sarkaria Commission observed:
“4.2.03 In 1937, when the Government of India Act,  1935  came  into  force,
the Congress Party commanded a  majority  in  six  provincial  legislatures.
They foresaw certain difficulties in functioning under the new system  which
expected Ministers to accept, without demur, the  censure  implied,  if  the
Governor exercised  his  individual  judgement  for  the  discharge  of  his
special responsibilities. The Congress Party  agreed  to  assume  office  in
these Provinces only after it received an assurance from  the  Viceroy  that
the Governors would not provoke a conflict with the elected Government.

4.2.04 Independence inevitably brought about a change in  the  role  of  the
Governor. Until the Constitution came into  force,  the  provisions  of  the
Government  of  India  Act,  1935  as  adapted  by  the  India  (Provisional
Constitution)  Order,  1947  were  applicable.  This   Order   omitted   the
expressions ‘in his discretion’, ‘acting in his discretion’ and  ‘exercising
his individual judgement’, wherever  they  occurred  in  the  Act.  Whereas,
earlier, certain functions were to be exercised by the  Governor  either  in
his discretion or in his individual judgement, the Adaptation Order made  it
incumbent on the Governor to exercise these as well as all  other  functions
only on the advice of his Council of Ministers.”

86.   The Justice Sarkaria  Commission  looked  at  Article  163(1)  of  the
Constitution in two parts, namely, the Governor  exercising  his  discretion
when required by the Constitution and when required under the  Constitution.
The exercise of discretion conferred by the Constitution would relate to  an
express provision of the Constitution (such as those relating to the  Tribal
Areas of Assam) or by necessary implication;  while  the  latter  expression
would include the exercise of discretion from rules and  orders  made  under
the Constitution.  Given  this  interpretation,  according  to  the  Justice
Sarkaria Commission, “The scope of discretionary powers has to  be  strictly
construed, effectively dispelling the apprehension, if any,  that  the  area
for the exercise of discretion covers all or any  of  the  functions  to  be
exercised by the Governor under the Constitution. In  other  words,  Article
163 does not give the Governor a general discretionary power to act  against
or without the advice of his Council of Ministers.”[57] (Emphasis  given  by
me).
87.   The Justice Sarkaria Commission studied the  Constitution  and  placed
the functions of the Governor in four categories:
(i)      The Governor acting in his discretion;
(ii)     The Governor acting in his individual judgment;
(iii)    The Governor acting in his discretion independently of the  Council
of Ministers.
(iv)    The Governor acting in his discretion under the Constitution.

88.   The first category of functions consists of  the  Governor  acting  in
his discretion only in respect of the Tribal  Areas  of  Assam  as  per  the
Sixth Schedule of the Constitution. Subsequently, as  the  Constitution  was
amended, this category expanded to include Article 371-A (1) (d) and  (2)(f)
[relating to Nagaland], Article 371-F (g) [relating to Sikkim], Article 371-
H (a) [relating to Arunachal Pradesh]. To this may also be  added  paragraph
20-BB of the Sixth Schedule, as discussed in Pu Myllai.
89.   The second category of functions consists of the  Governor  acting  in
his individual judgment. This was not provided for in  the  Constitution  as
originally enacted but was introduced by way of an amendment in Article 371-
A (1)(b) [pertaining to Nagaland]  and  Article  371-H  (a)  [pertaining  to
Arunachal Pradesh].
90.   With regard to the third category of functions, the  Justice  Sarkaria
Commission gave five examples of areas  where  the  Governor  exercises  his
discretion independently of the Council  of  Ministers  -  all  of  them  by
necessary implication:
“(a) Governor has necessarily to act in his discretion where the  advice  of
his Council of Ministers is not available, e.g.  in  the  appointment  of  a
Chief Minister soon after an election, or where  the  Council  of  Ministers
has resigned or where it has been dismissed [Article 164(1)].
(b) A Governor may have  to  act  against  the  advice  of  the  Council  of
Ministers, e.g. dismissal of a Ministry following its refusal to  resign  on
being defeated in the  Legislative  Assembly  on  a  vote  of  no-confidence
[Article 164(1) &(2)].

(c) A Governor may require that any matter decided  by  a  Minister  may  be
considered by the Council of Ministers (Article 167).

(d) A Governor may have to make a report to the President under Article  356
that a situation has arisen in which the government of the State  cannot  be
carried on in accordance with the provisions of the Constitution.

Obviously, in such a situation he may  have  to  act  against  the  aid  and
advice of the Council of Ministers as  the  situation  may  be  due  to  the
various acts of omission or  commission  on  the  part  of  the  Council  of
Ministers (Article 356).

(e) A Governor may have to exercise his discretion in reserving a  Bill  for
the consideration of the President (Article 200).”

To the above example may be added the view of this Court expressed  in  M.P.
Special Police Establishment.
91.   While explaining the examples given, the Justice  Sarkaria  Commission
also added that the Governor may exercise his  discretion  independently  of
the Council of Ministers in dissolving the Legislative Assembly,  but  there
has been no consistent practice in this regard. It was stated as follows:
“Various Governors have adopted different approaches in  similar  situations
in regard to dissolution of the Legislative Assembly. The advice of a  Chief
Minister, enjoying majority support in the Assembly, is normally binding  on
the Governor. However, where the Chief Minister had lost such support,  some
Governors refused to dissolve the Legislative Assembly on his advice,  while
others in  similar  situations,  accepted  his  advice,  and  dissolved  the
Assembly. The Assembly was dissolved in Kerala (1970) and in  Punjab  (1971)
on the advice of the Chief Minister whose  claim  to  majority  support  was
doubtful. However, in more or less similar circumstances in  Punjab  (1967),
Uttar  Pradesh  (1968),  Madhya  Pradesh  (1969)  and  Orissa   (1971)   the
Legislative Assembly  was  not  dissolved.  Attempts  were  made  to  instal
alternative Ministries.”[58]

92.   In specific regard to summoning the  Legislative  Assembly  (an  issue
directly  concerning  us  in  the  present  case),  the   Justice   Sarkaria
Commission noted that differing views  were  expressed  by  the  States  for
different reasons. These  have  been  mentioned  in  paragraphs  4.11.16  to
4.11.20 of the Report.[59] The sum and substance of the discussion  is  that
the unilateral power to summon the Legislative Assembly may be exercised  by
the Governor only in three situations:
(i)   When the Chief Minister designedly fails to advise  the  summoning  of
the Assembly  within  six  months  of  its  last  sitting,  or  advises  its
summoning for a date falling beyond this period.

(ii)     When the Chief Minister, unless he is the leader of  a  party  that
has an absolute majority in the Legislative Assembly, does not seek  a  vote
of confidence within 30 days of taking over.

(iii)       When it appears to the Governor that the incumbent  Ministry  no
longer enjoys the confidence of the Assembly, he may ask the Chief  Minister
to test his majority support on the floor of the House within  a  reasonable
time. The reasonable time could be within 30  days  (unless  there  is  some
urgency such as passing the annual budget) but should not exceed 60 days.

 It may be mentioned en passant that none of these situations arise  in  the
present case.
93.   With regard to the fourth category of functions, the Justice  Sarkaria
Commission gave the  examples  of  Orders  passed  by  the  President  under
Article 371 of the  Constitution.   One  such  Order  issued  under  Article
371(1)  of  the  Constitution  is  the  Punjab  Regional  Committees  Order,
1957.[60]  Paragraph 10 of this Order  provided  that  “The  Governor  shall
have special responsibility for securing the proper functioning of  regional
committees in accordance with the provisions of this Order.”
94.   Similarly, paragraph 10  of  the  Andhra  Pradesh  Regional  Committee
Order, 1958[61] issued under Article 371(1)  of  the  Constitution  provided
that “The Governor  shall  have  special  responsibility  for  securing  the
proper  functioning  of  the  regional  committee  in  accordance  with  the
provisions of this Order”.
95.   With regard to the State of Gujarat, the President  issued  the  State
of Gujarat (Special Responsibility of Governor for Kutch) Order, 1977  dated
28th February, 1977. This was in exercise of  powers  conferred  by  Article
371(2) of the Constitution. Paragraph  2  if  the  said  Order  provided  as
follows:
“2. Special Responsibility of Governor- (1) The Governor  of  Gujarat  shall
have special responsibility for the establishment  of  a  development  board
for Kutch and for the other matters referred to in  clause  (2)  of  article
371 of the Constitution in respect of that area.

(2) The Governor shall, in  the  discharge  of  his  special  responsibility
under this Order, act in his discretion.”

 96.  For the State  of  Manipur,  the  Manipur  Legislative  Assembly  Hill
(Areas Committee)  Order,  1972  was  issued  on  28th  June,  1972  by  the
President  in  exercise  of  powers  conferred  by  Article  371-C  of   the
Constitution.   Paragraph  9  of  this  Order  provided  for   the   special
responsibility  of  the  Governor:  “The   Governor   shall   have   special
responsibility for  securing  the  proper  functioning  of  the  Hill  Areas
Committee in accordance with the provisions of this Order and shall, in  the
discharge of his special responsibility, act in his discretion.”
97.   Finally, in exercise of powers conferred by Clause (2) of Article  371
of the Constitution, the President issued the State of Maharashtra  (Special
Responsibility  of  Governor  for  Vidarbha,  Marathwada  and  the  rest  of
Maharashtra) Order, 1994 which came into  effect  on  1st  May,  1994.  This
Order confers large discretionary powers on the Governor in relation to  the
functioning of the Development Boards, including allocation of funds.
98.   At all times, the  Governor  may  exercise  this  discretion  only  to
ensure that the system of responsible government in the State  functions  in
accordance with the norms envisaged in the Constitution, and  as  postulated
by the Constituent Assembly and Dr. Ambedkar.
99.   There is absolutely no reason to  take  a  view  different  from  that
expressed by the Justice Sarkaria Commission though coupled  with  the  view
expressed by this Court in the few decisions mentioned above.
Justice Punchhi Commission

100.  In March 2000, Justice Punchhi  submitted  a  Report  on  Centre-State
Relations. The broad mandate of the Commission was “to review  the  existing
arrangements between the Union and States as per the Constitution  of  India
in  regard  to  powers,  functions  and  responsibilities  in  all   spheres
including  legislative  relations,   administrative   relations,   role   of
Governors, emergency provisions, financial relations,  economic  and  social
planning, Panchayati  Raj  institutions,  sharing  of  resources,  including
inter-state river water and recommend such changes  as  may  be  appropriate
keeping in view the practical difficulties”.
101.  With reference to the discretionary  role  of  the  Governor,  broadly
speaking, the following situations  may  be  culled  out  from  the  Justice
Punchhi Commission Report (paragraph 4.5 thereof):
To give assent or withhold or  refer  a  Bill  [except  a  Money  Bill]  for
Presidential assent under Article 200;

The appointment of the Chief Minister under Article 164;

Dismissal of a Government that has lost the confidence of  the   Legislative
Assembly but refuses to quit since the Chief Minister  holds  office  during
the pleasure of the Governor;

If the Chief Minister  neglects  or  refuses  to  summon  the  Assembly  for
holding a "Floor Test", the Governor should  summon  the  Assembly  for  the
purpose.

Dissolution and prorogation of the House under Article 174;

Governor's report under Article 356;

Governor's responsibility for certain regions of the country under  Articles
371-A, 371-C and 371-H of the Constitution.

(viii)  Where the bias is inherent and/or manifest  in  the  advice  of  the
Council of Ministers [as in  the  case  of  Madhya  Pradesh  Special  Police
Establishment].

102.  The Justice Punchhi Commission  did  not  disagree  with  the  Justice
Sarkaria Commission on any issue relating to the  functions  and  duties  of
the Governor.  It must therefore be taken that  the  functions,  duties  and
powers of the Governor by or under the Constitution are  “cabined,  cribbed,
confined”. However, if “discretion” is given a broad meaning as  desired  by
the  respondents  and  is  given  greater  weightage  than  “his  individual
judgment” then  there  would  be  “saucy  doubts  and  fears”  [62]  of  the
arbitrary exercise of discretion by the Governor  as  has  happened  in  the
present case, and other cases.
103.  From the submissions made by learned counsel for the  responsents,  it
would seem that the functions of the Governor  in  his  relations  with  the
Executive  are  completely  hedged  in  but  in  his  relations   with   the
Legislature and the elected representatives,  his  discretion  is  virtually
unlimited and not subject to judicial review as well. Surely,  this  is  not
what the Constitution framers had in mind  nor  do  the  decisions  of  this
Court lead to such an intention or interpretation.
104.  Rather than provide so-called untrammeled power and authority  to  the
Governor, the Constitution makers gave him an escape route in the event  the
Legislature is recalcitrant. This is by way of resort to Article 356 of  the
Constitution through which the Governor can make a report to  the  President
in the event there is a failure of constitutional machinery  in  the  State.
This escape route is available in a case  where  the  Governor  dismisses  a
Government but the Government refuses to recognize the dismissal order.
105.  Additionally, to ensure that the Governor is not unaccountable in  his
relations  with  the  Legislature,  the  Constitution   provides   for   the
Legislature to frame its  rules  of  procedure  under  Article  208  of  the
Constitution. The Legislature in Arunachal Pradesh  has  framed  such  rules
and these are considered below.
Rules of Business of the Legislative Assembly

106.  First and foremost,  it  is  important  to  note  that  the  rules  of
procedure framed by the Legislative Assembly for  regulating  its  procedure
and the conduct of its business under Article 208  of  the  Constitution  do
not  need  anybody’s  approval,  including  that  of  the  Governor  of  the
State.[63]
107.  The Rules of Procedure and Conduct of Business  in  Arunachal  Pradesh
Legislative Assembly (for short  “the  Rules”)  framed  by  the  Legislative
Assembly of Arunachal Pradesh in exercise of  powers  conferred  by  Article
208 of the Constitution carry  forward  the  intention  of  the  Constituent
Assembly as well as the decisions of this  Court  to  the  effect  that  the
Governor is a constitutional or formal head not only of the  Executive  but,
in some respects, also of the Legislature. The Rules give  the  Governor  of
Arunachal Pradesh limited discretionary powers, but more particularly so  in
the matter of summoning the Legislative Assembly.
108.  Rule 3 of the Rules provides that for  summoning  the  Assembly  under
Article 174 of the Constitution, the Chief Minister shall,  in  consultation
with the Speaker, fix the date of commencement and duration of  the  session
of the Assembly and advise the Governor accordingly.  Rule 3A of  the  Rules
provides that on receipt of such advice, the Assembly  is  summoned  by  the
Governor and the Secretary of the  Assembly  then  issues  summons  to  each
member of the Assembly specifying the date and  place  for  the  session  at
least 30 days before the commencement of  the  session.   The  Assembly  may
also be summoned on a short notice in terms of the proviso  to  Rule  3A  of
the Rules, but we are not concerned with that.  Rule 3 and Rule  3A  of  the
Rules read as follows:-
“3.   The Chief Minister shall, in consultation with the  Speaker,  fix  the
date of commencement and the duration of the session,  advise  the  Governor
for summoning the Assembly under Article 174 of the Constitution.

3A. On issue of such summons by the Governor, the Secretary  shall  issue  a
summon to each member specifying the date and place for the session  of  the
House at least thirty days before the date of commencement of the Session:

Provided that when a Session is called at short notice  or  emergently,  the
summons may not be issued to each member separately but an  announcement  of
the date and place of the Session shall be  published  in  the  Gazette  and
made on the All-India Radio and  the  members  shall  also  be  informed  by
wireless messages or telegrams.”

109.  It is clear from the above that the Governor can summon  the  Assembly
only if the Chief Minister (in consultation with  the  Speaker)  so  advises
him.  There  is  no  exception  to  this.   However,  Article  174  of   the
Constitution would be violated if the Chief Minister does not so advise  the
Governor to summon the Assembly for a  period  of  six  months,  or  if  the
Governor does not summon the  Assembly  despite  the  advice  of  the  Chief
Minister. As mentioned by Pandit Jawaharlal Nehru when the  First  Amendment
to the Constitution was discussed in Parliament, either the  Chief  Minister
or the Governor (as the case may be) would have to bear the consequences  of
violating the Constitution.
110.  In matters pertaining to  the  Assembly,  the  Governor  of  Arunachal
Pradesh has been given an additional ‘discretionary  power’.  This  is  with
regard to the election of the Speaker of the  Assembly.  Rule  7(1)  of  the
Rules provides that when a  new  Assembly  is  constituted  or  there  is  a
vacancy in the office of the Speaker and the  election  of  the  Speaker  is
necessary, the Governor shall fix a date for holding the election.  To  this
extent the Governor has a role to play in the Assembly in his capacity as  a
constituent of  the  Legislature,  as  postulated  by  Article  168  of  the
Constitution.  Rule 7(1) of the Rules is relevant for this  purpose  and  it
reads as follows:
“7(1) When at the beginning of the new Assembly or owing  to  a  vacancy  in
the office of the Speaker, the election  of  a  Speaker  is  necessary,  the
Governor shall fix  a  date  for  the  holding  of  the  election,  and  the
Secretary shall send to every member notice of the date so fixed.”

111.  The Governor has yet another discretionary duty to  perform  which  is
when the office of the Speaker as well as  the  Deputy  Speaker  is  vacant,
even when the Assembly is not a new Assembly.  In that  event  the  Governor
has the discretionary duty  to  appoint  a  member  of  the  Assembly  as  a
Speaker.  This is provided for in Article  180(1)  of  the  Constitution  as
well as Rule 8B of the Rules which reads as follows:
“8B. While the Offices of both  the  Speaker  and  the  Deputy  Speaker  are
vacant, the duties of the Office of the Speaker shall be performed  by  such
member of the Assembly as the Governor may appoint for the purpose.”

 Over the years a convention has developed in most Legislatures  in  respect
of filling up such vacancies and the ‘discretion’ of the Governor  has  been
limited thereby.
112.  This may be contrasted with Article 180(2) of the  Constitution  which
provides that when the Speaker and the Deputy Speaker are both  absent  (not
because of any vacancy) then the Legislative Assembly and not  the  Governor
shall determine, by rules or otherwise, the person  who  shall  act  as  the
Speaker.
113.  Article 200 of the Constitution postulates that the Governor  may  (in
exercise of his  discretion)  withhold  assent  to  a  Bill  passed  by  the
Legislature. This too is the  subject  matter  of  the  Rules  and  Rule  82
thereof makes a provision in this regard which reads as follows:
“82. The orders of the President or the  Governor  granting  or  withholding
the  sanction  or  recommendation  to  an  amendment  to  a  Bill  shall  be
communicated to the Secretary by the Minister concerned in writing.”

114.  Of course, the Governor cannot withhold assent to a Bill  indefinitely
but must return it to the Assembly with a message  and  this  could  include
his recommendation for amendments to the Bill.  This is the  subject  matter
of Rule 102 and Rule 103 of the Rules which read as follows:
“102 (1) When a Bill passed by the Assembly is returned to the  Assembly  by
the Governor with a message requesting that the Assembly do  reconsider  the
Bill or any specified provisions thereof  or  any  such  amendments  as  are
recommended in his message, the  Speaker  shall  read  the  message  of  the
Governor in the Assembly if in  session,  or  if  the  Assembly  is  not  in
session, direct that it  may  be  circulated  for  the  information  of  the
members.

(2) The Bill as passed by the Assembly and  returned  by  the  Governor  for
reconsideration shall thereafter be laid on the Table.

103. At any time after the Bill has been so laid on the Table, any  Minister
in the case of a Government Bill, or, in any  other  case,  any  member  may
give notice of his intention to move that the amendments recommended by  the
Governor be taken into consideration.”

115.  It will be seen from the  above  that  the  discretion  given  to  the
Governor in respect of his relations with the Legislative  Assembly  is  not
only limited and circumscribed by the Constitution but  also  by  the  Rules
framed by the Legislative Assembly under Article 208  of  the  Constitution.
So much so that even the procedure for exchange  of  communications  between
the Governor and the Assembly is regulated. The Governor shall transmit  his
messages to the Assembly through the Speaker in writing signed by him or  if
he is absent from the  place  of  meeting  of  the  Assembly,  it  shall  be
conveyed to the Speaker through the leader of  the  House  or  through  such
person as the leader may delegate.  This  is  provided  in  Rule  203  which
reads as follows:
“203 (1) Communications from the Governor to the Assembly shall be  made  to
the Speaker by written message signed by the Governor or if the Governor  is
absent from the place of meeting of  the  Assembly,  his  message  shall  be
conveyed to the Speaker through the Leader of  the  House  or  through  such
person as the Leader may delegate.

(2) Communication from the Assembly to the Governor shall be made:-
(i) by formal address after motion made and carried in the Assembly;
(ii) through the Speaker.”

There can be no doubt that the Governor would need to respect the  Rules  at
least in his relations  with  the  Legislature  and  cannot  override  their
terms.
Arunachal Pradesh Rules of Executive Business

116.  In exercise of powers conferred  by  Clause  (2)  and  Clause  (3)  of
Article 166 of the Constitution,  the  Governor  of  Arunachal  Pradesh  has
framed the Arunachal Pradesh Rules of Executive Business, 1987.
117.  In terms of Rule  8,  all  cases  referred  to  in  the  Schedule  are
mandated to be brought before the Cabinet in accordance with the  provisions
contained in Part II thereof.  Rule 8 reads as follows:
“8.   Subject to the orders of the Chief Minister under Rule 14,  all  cases
referred to in the Schedule to these  rules  shall  be  brought  before  the
Cabinet in accordance with the provisions of the rules  contained  in  Part-
II.”

118.  As will be noticed from the above, Rule 8 is subject to the orders  of
the Chief Minister under Rule 14 which is in Part II.  In  this  regard,  as
per Rule 14, the Chief Minister is entitled to refer any case  mentioned  in
the Schedule for consideration at a meeting of the Cabinet.  Rule  14  reads
as follows:
“14. All cases referred to as in the schedule shall, after consideration  by
the Minister be sent to the Secretary with a view  to  obtaining  orders  of
the Chief Minister for  circulation  of  the  case  under  Rule  16  or  for
bringing it for consideration at a meeting of the Cabinet.”

119.  Rule 33 gives a list of classes of cases required to be placed  before
the Governor before the  issuance  of  orders,  with  the  approval  of  the
concerned Minister and the Chief Minister. This includes, in Rule 33(i)  the
Governor’s address and message to  the  Legislative  Assembly  and  in  Rule
33(p) the summoning, prorogation or dissolution of the State  Assembly.   In
other words, before summoning the Legislative Assembly, the case has  to  be
considered by the Chief Minister and then  placed  before  the  Governor  of
Arunachal Pradesh for issuance of  appropriate  orders.  This  is  fully  in
consonance with the Rules of Procedure and Conduct of Business in  Arunachal
Pradesh Legislative Assembly framed under Article 208 of the Constitution.
120.  The Schedule to the Arunachal  Pradesh  Rules  of  Executive  Business
provides in item no. 4 (with reference to Rule 8 and Rule 14) for  proposals
to summon, prorogue or dissolve the Legislature of the State.
Conclusions on the Rules of Business

121.  It is clear from the above,  that  though  summoning  the  Legislative
Assembly might be an executive function of the Governor, that  function  can
be exercised by him only  after  such  a  proposal  is  seen  by  the  Chief
Minister and sent to him. Reading this  with  the  Rules  of  Procedure  and
Conduct of Business in Arunachal Pradesh  Legislative  Assembly,  the  Chief
Minister can make a proposal to the Governor for summoning  the  Legislative
Assembly only in consultation with the Speaker of the  Legislative  Assembly
who is, in a sense, the Master of the House.  In other words,  the  Governor
has no  independent  discretion  or  authority  to  summon  the  Legislative
Assembly, in terms of the Rules of Procedure  and  Conduct  of  Business  in
Arunachal Pradesh Legislative Assembly  framed  under  Article  208  of  the
Constitution or the Arunachal Pradesh  Rules  of  Executive  Business,  1987
framed under Article 166 of  the  Constitution  to  summon  the  Legislative
Assembly in his discretion.
122.  As already mentioned above, in case the Chief Minister  fails  in  his
duty to put forward  a  proposal  before  the  Governor  for  summoning  the
Legislative Assembly or if the Governor does not accept the proposal of  the
Chief Minister of Arunachal Pradesh for summoning the Legislative  Assembly,
necessary  consequences  will  follow  as  mentioned  in  the   debates   in
Parliament when the first amendment to the Constitution was considered.
Article 371-H of the Constitution

123.  Apart from the views of the Constituent Assembly,  the  provisions  of
the Constitution, decisions of this Court and the views of  eminent  jurists
on the functions, duties and powers of the Governor, the Constitution has  a
special provision with respect to Arunachal Pradesh. Article  371-H  of  the
Constitution provides for the Governor exercising “his individual  judgment”
in the discharge of his functions relating to law  and  order  in  Arunachal
Pradesh. Specifically, therefore, the exercise  of  individual  judgment  by
the Governor of Arunachal Pradesh is permitted by the Constitution,  but  is
limited to issues of law and order only. Article 371-H of  the  Constitution
reads as follows:
“371-H.  Special  provision  with  respect  to  the   State   of   Arunachal
Pradesh.—Notwithstanding anything in this Constitution,—
(a) the Governor of Arunachal  Pradesh  shall  have  special  responsibility
with respect to law and order in the State of Arunachal Pradesh and  in  the
discharge of his functions in relation thereto, the  Governor  shall,  after
consulting the Council of Ministers, exercise his individual judgment as  to
the action to be taken:
Provided that if any question arises whether any  matter  is  or  is  not  a
matter as respects which the Governor is under this clause required  to  act
in the exercise of his individual judgment, 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 the exercise of his individual judgment:
Provided further that if the President on  receipt  of  a  report  from  the
Governor or otherwise is satisfied that it is no longer  necessary  for  the
Governor to have special responsibility with respect to  law  and  order  in
the State of Arunachal Pradesh, he may by order  direct  that  the  Governor
shall cease to have such responsibility with effect from such  date  as  may
be specified in the order;
(b) the Legislative  Assembly  of  the  State  of  Arunachal  Pradesh  shall
consist of not less than thirty members.”

124.  It is quite clear from the above discussion and particularly from  the
provisions of the Constitution that the concept of “in his  discretion”  and
“his individual judgment” is very much alive and the  distinction  continues
to be real. Once this is appreciated the extent and scope of Article 163  of
the Constitution becomes obvious.
Conclusions

125.  Under Article 163(1) of the Constitution, the  Governor  is  bound  by
the advice of his Council of Ministers.  There  are  only  three  exceptions
[“except in so far as”] to this: (i) The Governor may, in  the  exercise  of
his functions, act in his discretion as conferred by the Constitution;  (ii)
The Governor may, in the exercise of his functions, act  in  his  discretion
as conferred under the Constitution; and (iii)  The  Governor  may,  in  the
exercise of his functions, act  in  his  individual  judgment  in  instances
specified by the Constitution.
126.  The development  of  constitutional  law  in  India  and  some  rather
peculiar and extraordinary  situations  have  led  to  the  evolution  of  a
distinct category of functions, in addition to those postulated or  imagined
by the Constitution and identified above. These are functions in  which  the
Governor acts by the Constitution and of constitutional  necessity  in  view
of the peculiar and extraordinary situation such  as  that  which  arose  in
M.P. Special Police Establishment and as arise  in  situations  relating  to
Article 356 of the Constitution or in choosing a person to be the leader  of
the Legislative Assembly and the Chief Minister of the State by proving  his
majority in the Legislative Assembly.
127.  However, these limitations do not preclude  the  Legislative  Assembly
from framing its Rules of Legislative Business  under  Article  208  of  the
Constitution with reference to the functions of the Governor,  nor  do  they
preclude the  Governor  from  framing  Rules  of  Executive  Business  under
Article  166  of  the  Constitution  for  the  smooth  functioning  of   the
government, as  long  as  the  Rules  are  framed  in  consonance  with  the
constitutional requirements and within constitutional boundaries.
Understanding the facts …..

128.  The facts presented  to  us  show  that  on  3rd  November,  2015  the
Governor issued an Order whereby, in exercise of powers conferred on him  by
Clause (1) of Article 174 of the Constitution,  the  Sixth  Session  of  the
Legislative Assembly was summoned to meet at 10.00  a.m.  on  14th  January,
2016  to  18th  January,  2016  in  the  Legislative  Assembly  Chamber   at
Naharlagun. The Order was in accordance with  the  constitutional  provision
(Article 174) for summoning the Assembly and in accordance  with  the  Rules
of Procedure and  Conduct  of  Business  in  Arunachal  Pradesh  Legislative
Assembly framed in  exercise  of  powers  granted  by  Article  208  of  the
Constitution. In other  words,  the  Order  was  in  consultation  with  the
Speaker of the Assembly and the Chief Minister of Arunachal Pradesh.
129.  Thereafter, on 19th November, 2015 notice  of  a  resolution  for  the
removal of the Speaker was received in the Secretariat  of  the  Legislative
Assembly. This resolution was in terms of Article 179 of  the  Constitution.
A copy of this resolution was  also  independently  made  available  to  the
Governor by the signatories to  the  resolution  along  with  a  request  to
advance the date of the session of the Assembly to consider and vote on  the
resolution for the removal of the Speaker.
130.  By an Order issued on 9th December, 2015 the Order  of  3rd  November,
2015 summoning the Assembly was modified by  the  Governor  on  the  ground,
inter alia, of his constitutional obligation “to ensure that the  resolution
for removal of  Speaker  is  expeditiously  placed  before  the  Legislative
Assembly.” The modification Order modified the date of  14th  January,  2016
to read 16th December, 2015 and the date  of  18th  January,  2016  to  18th
December, 2015.
131.  The modification Order also recorded  that  expeditious  consideration
was necessary in view of (i) past precedents in the Lok Sabha (none  of  the
learned counsel could enlighten us on any such precedent); (ii) paragraph  2
of Rule 151 of the Rules of Procedure and Conduct of Business  in  Arunachal
Pradesh  Legislative  Assembly   required   expedition;[64]   (iii)   utmost
immediacy for clearing the cloud cast on the continuance  of  the  incumbent
Speaker; (iv) the personal satisfaction of the Governor that  the  time  gap
till the next session of the Assembly was long  and  unreasonable  and  “may
cause damage to the goals and ideals of provisions in  the  Constitution  of
India and the Rules of Procedure of the House concerning speedy disposal  of
such resolutions” and; (v) in advancing the date of  the  sixth  session  of
the Assembly, he “may  not  be  bound  by  the  advice  of  the  Council  of
Ministers, since the subject  matter  of  the  notice  for  removal  of  the
Speaker is not a matter falling under  the  executive  jurisdiction  of  the
Chief Minister, Arunachal Pradesh nor such a subject matter finds a  mention
in the Rules of Executive Business of the Government  of  Arunachal  Pradesh
framed under Article  166  of  the  Constitution  of  India…”  The  relevant
extract of the modification Order reads as follows:
“WHEREAS any such notice of resolution in relation  to  an  Officer  of  the
Legislative Assembly (Speaker or Deputy Speaker) needs to  be  expeditiously
considered by the Legislative Assembly 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 Assembly and  (iii)
the utmost immediacy with which the cloud cast by the notice  of  resolution
over the continuance of the incumbent in the office of the  Speaker  has  to
be cleared:

WHEREAS I am personally satisfied that the time  gap  between  the  date  of
compliance of the notice with the notice  period  prescribed  in  the  first
proviso to article 179 (c) of the Constitution of India and the date of  the
intended first sitting of the ensuing session, as computed in the  aforesaid
manner, is long and unreasonable and may  cause  damage  to  the  goals  and
ideals of  provisions  in  the  Constitution  of  India  and  the  Rules  of
Procedure of the House concerning speedy disposal of such resolutions:

WHEREAS 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
India to a date earlier than the date mentioned in  the  summons  dated  3rd
November,  2015  for  facilitating  the  House  to  expeditiously   consider
resolutions for removal of Speaker,  I may not be bound  by  the  advice  of
the Council of Ministers,  since  the  subject  matter  of  the  notice  for
removal of  the  Speaker  is  not  a  matter  falling  under  the  executive
jurisdiction of the Chief Minister, Arunachal Pradesh  nor  such  a  subject
matter finds a mention in the Rules of Executive Business of the  Government
of Arunachal Pradesh framed under article 166 of the Constitution  of  India
thereby restricting the role  of  the  Chief  Minister  in  advising  me  in
exercise of my powers under article 174(1)  of  the  Constitution  of  India
only to matters for which the Chief  Minister,  under  the  Constitution  of
India, is responsible:”

132.  Effectively, the Governor not only modified the dates of  the  session
of the Assembly but also cancelled or revoked the dates of  the  session  of
the Assembly earlier decided upon in consultation with the  Speaker  of  the
Assembly and the Chief Minister of Arunachal Pradesh.
133.  On 14th December, 2015 that is two days before  the  Assembly  was  to
meet, the Council of Ministers  of  Arunachal  Pradesh  met  and  considered
Agenda Item No. 1 being “Discussion on the message dated 9th December,  2015
of the Governor of  Arunachal  Pradesh  for  pre-ponement  of  the  Assembly
session from 14th January, 2016 to 16th December, 2015”. The Minutes of  the
Cabinet record as follows:
“The Cabinet has discussed the opinion  rendered  by  the  Learned  Advocate
General dated 12.12.2015 on the constitutionality of the order  and  message
of HE, the Governor. After careful examination, the Cabinet has resolved  as
under:

The State Cabinet at its meeting held on 14th December, 2015 at 1000 hrs  in
CMs conference hall again discussed in detail  the  Order  and  the  Message
dated 09.12.2015 of His Excellency the Governor of Arunachal Pradesh.

Cabinet  has  received  the  opinion  of  the  Ld.  Advocate  General  dated
12.12.2015 and other legal experts  on  the  said  Order  and  Message.  The
Cabinet has perused the said opinion  and  is  in  complete  agreement  with
views of the Ld. Advocate General.

The said Order dated 09.12.2015 issued by His  Excellency  the  Governor  of
Arunachal Pradesh is in contradiction to Article 174 read with  Article  163
of the Constitution of India and Rule 3 and 3A of  the  Rules  of  Procedure
and Conduct of Business  of  the  Arunachal  Pradesh  Legislative  Assembly.
Similarly, the Message is contrary to Article 175 of the  Constitution  read
with Rule 245 of the Rules. Moreover, the Hon’ble High Court of Gauhati  has
fixed the hearing of the case of resignation of 2 MLAs from the Assembly  on
16th December, 2015.

Therefore, the Cabinet resolves and advises, His  Excellency,  the  Governor
of Arunachal Pradesh to recall and cancel the Order and  Message  dated  9th
December, 2015 and allow the Session to be convened on  14th  January,  2016
as already ordered and scheduled.

The Cabinet also resolves to endorse a copy of  this  resolution  and  legal
advice of the Ld. Advocate General to the Hon’ble Speaker.”

134.  As per the list of dates and events supplied to us, the Speaker  urged
the Governor by a communication  of  14th  December,  2015  “to  uphold  and
preserve the sanctity of the constitutional  framework  and  let  the  House
function as per its original schedule without any undue interference.”  This
communication was not acknowledged nor replied to.  It  has  also  not  been
placed before us.
….. and the applicable law

135.  It does appear to me, on facts, that the Governor  acted  unilaterally
in issuing the modification Order and  did  not  consult  either  the  Chief
Minister or the Speaker. In any event, no such  consultation  was  shown  to
us. Under these  circumstances,  the  legitimate  question  that  arises  is
whether the Governor could modify the notified dates of the session  of  the
Assembly and simultaneously cancel and revoke the dates earlier fixed by  an
appropriate Order in exercise  of  his  powers  under  Article  174  of  the
Constitution and (as suggested by learned counsel appearing  on  his  behalf
and the movers of the resolution) in the exercise of  his  discretion  under
Article 163 of the Constitution? What  further  complicates  the  matter  is
that the Governor ignored the resolution of the Cabinet  of  14th  December,
2015 even assuming the communication of the Speaker did not reach him.
136.  Our Constitution expects all  constitutional  authorities  to  act  in
harmony and there must be comity between them to further the  constitutional
vision of democracy in the larger interests of the nation. In  other  words,
conflicts between them should be completely avoided but  if  there  are  any
differences of opinion  or  perception,  they  should  be  narrowed  to  the
maximum extent possible and ironed out through dialogue and  discussion.  It
must be appreciated that no one is above the law and equally, no one is  not
answerable to the  law  and  the  debate  on  the  First  Amendment  to  the
Constitution clearly indicates so.
137.  As is evident from our constitutional history, there are  three  areas
in which a Governor might function:
Areas in which he can act only on the aid  and  advice  of  the  Council  of
Ministers. This is in all areas of the  executive  functions  of  the  State
Government [Article 166].

Areas in which he can act in his discretion by  or  under  the  Constitution
and in which he does  not  need  to  take  the  advice  of  the  Council  of
Ministers [Article 163 - “except in so  far  as  he  is  by  or  under  this
Constitution required to exercise his  functions  or  any  of  them  in  his
discretion.”] or, areas in which he might take the advice of the Council  of
Ministers but is not bound by it enabling  him  to  act  in  his  individual
judgment by or under the Constitution.

Areas that have no concern with the Constitution. For example, where  he  is
acting eo nomine. We are not concerned with this area at all.

For our purposes, a distinction needs to be drawn between  the  relationship
of the  Governor  vis-à-vis  the  Executive  and  the  relationship  of  the
Governor vis-à-vis the Legislature. Article 163 deals with the  relationship
of the first  category  and  Article  174  (among  others)  deals  with  the
relationship of the second  category.  We  are  concerned  with  the  second
category, although the submissions of learned counsel have roped in  Article
163 of  the  Constitution  by  contending  that  summoning  the  Legislative
Assembly is an executive act or function.
138.   It is not at all necessary to enter into a debate on whether the  act
or function of summoning the Assembly  is  an  executive  act  or  function.
Assuming it to be an executive function, summoning the  Assembly  cannot  be
read as a ‘power’ conferred  by  the  Constitution  on  the  Governor  -  it
remains a function  that  the  Governor  performs  in  accordance  with  the
mandate of the Rules of Procedure  and  Conduct  of  Business  in  Arunachal
Pradesh Legislative Assembly on the advice of  the  Chief  Minister  and  in
consultation with the Speaker of the Assembly. The unarticulated premise  is
that the Governor cannot ‘act’ in an unregulated manner de  hors  any  rules
of procedure in matters concerning the Legislative  Assembly.  The  Governor
is  expected  to  function  in  accordance  with  the  provisions   of   the
Constitution (and the history behind the enactment of its  provisions),  the
law and the rules regulating his functions. It is easy to  forget  that  the
Governor is a constitutional or formal head -  nevertheless  like  everybody
else, he has to play the game in accordance with the rules  of  the  game  –
whether it is in relation to the Executive (aid and advise  of  the  Council
of Ministers)  or  the  Legislature  (Rules  of  Procedure  and  Conduct  of
Business of the Arunachal Pradesh Legislative Assembly).   This  is  not  to
say that the Governor has no powers – he does, but these too are  delineated
by  the  Constitution  either  specifically  or  by  necessary  implication.
Failure to adhere to these basic principles is an invitation  to  enter  the
highway to the danger zone.
139.    Assuming however, that the Governor has the  ‘constitutional  power’
to summon the Assembly (and that it is not  merely  an  executive  function)
the considerations at law become quite  different.  Undoubtedly,  no  power,
constitutional or otherwise, can be exercised in an arbitrary manner  though
the exercise of power, in some situations  is  undoubtedly  beyond  judicial
consideration or judicial review and at best  an  academic  discussion,  for
example  the  legality  of   using   the   armed   forces   of   the   Union
internationally.  If the functions of the Governor were to be  read  as  his
power, and an untrammeled one at  that  (in  view  of  Article  163  of  the
Constitution, as contended), then the Governor has the  power  to  literally
summon the Assembly to meet “at such time and place as he thinks  fit”  that
is in any city  and  at  any  place  other  than  the  Legislative  Assembly
building and at any odd time. This is nothing but arbitrary and  surely,  an
arbitrary exercise of power is  not  what  our  Constitution  makers  either
contemplated in the hands of the Governor or imagined its  wielding  by  any
constitutional authority.
140.  In the Case  concerning  Electtronica  Sicula  S.P.A.  (ELSI)[65]  the
International Court of Justice  described  arbitrariness  in  the  following
words:
“128. Arbitrariness is not so much something opposed to a rule  of  law,  as
something opposed to the rule of law. This idea was expressed by  the  Court
in the Asylum case, when it spoke of "arbitrary action"  being  "substituted
for the rule of law" (Asylum, Judgment, I.C.J. Reports 1950, p. 284). It  is
a wilful disregard of due process of law, an act which shocks, or  at  least
surprises, a sense of juridical propriety.”

141.  Does the rule of law in our  country  permit  the  Governor  to  throw
constitutional  principles  and  the  Rules  of  Procedure  and  Conduct  of
Business of the Arunachal Pradesh Legislative  Assembly  to  the  winds  and
summon the Assembly to meet wherever  and  whenever  he  deems  appropriate?
Surely the answer to this must be in the negative and since that is  so,  it
must follow that  the  ‘power’  apparently  conferred  on  the  Governor  is
arbitrary and must be read down to at  least  a  ‘reasonable  power’  to  be
exercised in accord and consonance with constitutional principles,  law  and
the rules.
142.  On merits, it is not possible or even advisable to look into the  pros
and cons of the decision taken by the Governor. All that  need  be  said  is
that the events as they occurred with  great  rapidity  over  the  days  and
weeks preceding the modified Order appear to be nothing more or less than  a
political circus. However, what is disquieting in constitutional terms  (and
that has nothing to do with the reasons given by the Governor or the  merits
or otherwise of the decision unilaterally taken by him) is the short  shrift
that the Governor gave to a possible resolution of the Cabinet of  Arunachal
Pradesh. While issuing the modified Order, the Governor concluded that  that
he “may not be bound by the advice the Council of  Ministers”  for  whatever
reason. From where did the Governor derive this principle  and  how  did  he
dream that he could invoke the concept of  “individual  judgment”  should  a
resolution of the Council of Ministers be  placed  before  him  –  the  very
concept that our constitution framers were not in favour of?
143.  To  make  matters  worse  and,  in  a  sense,  humiliate  the  elected
government of the day,  the  Governor  did  ignore  the  resolution  of  the
Council of Ministers taken on 14th December, 2015 when it was placed  before
him. By this time there was a complete break-down of communications  between
the Governor and the elected Government and that, among  other  things,  led
to  an  unsavory  confrontation  between  the  Governor  and  some   Cabinet
Ministers. That interpersonal relationships of constitutional  functionaries
are carried out with such a complete lack of cordiality and gay  abandon  is
indeed unfortunate. The result is a thrashing given to the Constitution  and
a  spanking  to  governance.  It  is  precisely  to  avoid  this  that   the
Constituent Assembly invoked the “principle of responsible government”.  Sir
Alladi Krishnaswamy  Aiyar,  while  supporting  Dr.  Ambedkar’s  motion  for
adopting  the  Constitution  spoke  of  responsible   government   and   the
“breakdown provisions” of the Constitution (not necessarily Article 356)  on
23rd November, 1949 (virtually echoing Churchill) as follows:
“After weighing the pros and cons of the Presidential  System  as  obtaining
in America and the Cabinet system of Government  obtaining  in  England  and
the  Dominions,  taking  into  account  also  the  working  of   responsible
Government in the Indian Provinces for some  years  and  the  difficulty  of
providing for a purely presidential type of  Government  in  the  States  in
Part II, (now part IB) this Assembly has deliberately adopted the  principle
of responsible Government both in the States and in the Centre. At the  same
time the Assembly was quite alive to the fact that a good number  of  States
in Part IB were unaccustomed to any  democratic  or  responsible  Government
and with a view of ensure  its  success  and  efficient  working  the  early
states of the Union Government is entrusted with the power  of  intervention
while  there  is  a  failure  or  deadlock  in  the  working  of  democratic
machinery.

My honourable Friend Prof. K.T. Shah in expatiating upon the merits  of  the
Constitutional system based upon the principle of separation, did not  fully
realize the inevitable conflict and  deadlock  which  such  a  system  might
result in a country circumstanced as India is. The breakdown  provisions  in
the Constitution are not intended in any way to hamper the free  working  of
democratic institutions or responsible Government in  the  different  units,
but only to  ensure  the  smooth  working  of  the  Government  when  actual
difficulties arise in the working of the Constitution. There is  no  analogy
between the authority exercised by  the  Governor  or  the  Governor-General
under the authority of the British Parliament in the  Constitution  of  1935
and the power vested in the Central Government under the  new  Constitution.
The Central Government in India in future will be responsible to the  Indian
Parliament in which are  represented  the  people  of  the  different  units
elected on adult franchise and are responsible to Parliament for any act  of
theirs. In one sense the breakdown provision is  merely  the  assumption  of
responsibility by the Parliament at  Delhi  when  there  is  an  impasse  or
breakdown in the administration in the Units.”[66]

144.  A further word may be said on “responsible government” in addition  to
the views of the Constituent Assembly. The idea of a responsible  government
was mentioned in U.N.R. Rao v. Indira  Gandhi.[67]  However,  there  was  no
discussion on what constitutes or is expected of  a  responsible  government
other than an expression of a view that the Council of Ministers must  enjoy
the confidence of the House of the People.
145.  In S.R.  Chaudhuri  v.  State  of  Punjab[68]  it  was  observed  that
parliamentary  democracy  generally  envisages  (i)  Representation  of  the
People,  (ii)  Responsible  government,  and  (iii)  Accountability  of  the
Council  of  Ministers   to   the   Legislature.    With   regard   to   the
characteristics of a responsible government,  this  Court  referred  to  the
Constitutional Law of Canada[69] and the  limited  discretion  available  to
the Governor-General in the following words:
“The narrative must start with an exercise by the  Governor-General  of  one
of  his  exceptional  reserve  powers  or  personal  prerogatives.  In   the
formation of a Government it is the Governor-General’s duty  to  select  the
Prime Minister. He must select a person who  can  form  a  Government  which
will enjoy the confidence of the House of Commons. For  reasons  which  will
be explained later, the Governor-General rarely has any real  choice  as  to
whom to appoint: he must appoint the parliamentary leader of  the  political
party which has a majority of seats in the  House  of  Commons.  But  it  is
still accurate to describe the Governor-General’s  discretion  as  his  own,
because unlike nearly all of  his  other  decisions  it  is  not  made  upon
ministerial advice.

When the Prime Minister has been appointed, he selects the other  Ministers,
and advises the Governor-General to appoint  them.  With  respect  to  these
appointments, the Governor-General reverts to his  normal  non-discretionary
role and is obliged by convention to make the appointments  advised  by  the
Prime Minister. If the Prime Minister later wishes to make  changes  in  the
Ministry, as by moving a Minister from  one  portfolio  to  another,  or  by
appointing a new Minister, or by removing a  Minister,  then  the  Governor-
General will  take  whatever  action  is  advised  by  the  Prime  Minister,
including if necessary the dismissal of  a  Minister  who  has  refused  his
Prime Minister’s request to resign.”

146.  In dealing with the situation in Arunachal Pradesh, the  Governor  was
obliged to adhere to and follow the constitutional principle,  that  is,  to
be bound by the advice of the  Council  of  Ministers.  In  the  event  that
advice was not available and responsible government was  not  possible,  the
Governor could have resorted to the “breakdown provisions” and  left  it  to
the President to break the impasse. The  Governor  had  the  advice  of  the
Council of Ministers but chose to ignore it; he  assumed  (well  before  the
advice was tendered) that the advice would be such  that  he  might  not  be
bound by it; the Governor, despite being the ‘first citizen’ of  the  State,
chose to take no steps  to  break  the  impasse  caused  by  a  collapse  of
communications between him and the Chief  Minister;  finally,  the  Governor
took no steps to resort to the breakdown  provisions  and  obtain  impartial
advice from the President. Instead, the Governor acted in a manner not  only
opposed to a rule  of  law  but  also  opposed  to  the  rule  of  law  and,
therefore, arbitrarily and in a manner that certainly surprises “a sense  of
juridical propriety”.
147.  The Governor had yet another option available to him – to invoke  what
is referred in Canada as the “confidence convention”  in  which  “the  Prime
Minister and the Cabinet are responsible to, or must answer  to,  the  House
of Commons for their actions and must enjoy the support and  the  confidence
of a majority of the Members of that Chamber to remain  in  office.”[70]  If
the  Governor  had  any  doubt  about  the  continuance  of  a   responsible
government as a result of the shenanigans that were going  on  in  Arunachal
Pradesh at the relevant time, he could very well  have  required  the  Chief
Minister to prove that he had the confidence of the Assembly, but  he  chose
not  to  exercise  this  option  also.  In   other   words,   all   possible
constitutional options were unilaterally discarded and  disregarded  by  the
Governor in summoning the Assembly  to  meet  on  16th  December,  2015  and
cancelling the session fixed for 14th January,  2016.  The  actions  of  the
Governor were certainly not in the language of the  law  or  the  spirit  of
parliamentary   democracy   and   responsible    government.     In    these
circumstances, it must  be  held  that  the  Governor’s  unilateral  act  of
summoning the Assembly is unconstitutional.
Relations between the Governor, the Executive and the Legislature
148.   The  issue  may  also  be  looked  at  from  an  entirely   different
perspective based on the provisions of the Constitution.   Part  VI  of  the
Constitution concerns the States and it consists of six chapters. Chapter  I
is general and consists  of  one  definition.  Chapter  II  relates  to  the
Executive, that is, the Governor, the Council  of  Ministers,  the  Advocate
General for the State and conduct  of  government  business.  Amongst  other
things, the ‘eligibility’  of  a  person  to  be  appointed  a  Governor  is
provided for in this chapter. Article 158 of the Constitution provides  that
the Governor shall not be a Member of Parliament or of a  State  Legislature
and if such a Member is appointed as a Governor, he shall be deemed to  have
vacated his seat in the House when he enters upon his  office  as  Governor.
This is significant since it insulates the Legislature from the Governor.
149.  Article 163 of the Constitution  and  the  discretionary  exercise  of
functions of the Governor comes under the heading of  Council  of  Ministers
and is suggestive of executive governance  or  executive  issues  concerning
the Council of Ministers. In this context, reference may  also  be  made  to
Article 164 of the Constitution which provides for the  appointment  of  the
Chief Minister of the State by the Governor and  the  appointment  of  other
Ministers on the advice of the Chief Minister. The appointment of the  Chief
Minister is based on the postulate  that  he  commands  or  is  expected  to
command the support of a majority of Members of  the  Legislative  Assembly.
Therefore, it is not as  if  the  Governor  has  untrammeled  discretion  to
nominate anyone to be the Chief Minister  of  a  State.  Similarly,  if  the
Governor chooses to ‘withdraw his pleasure’ in  respect  of  a  Minister  he
must exercise his discretion with the knowledge of the  Chief  Minister  and
not by keeping him in the dark or unilaterally.  In this context,  reference
may be also be made to Article 165 of the Constitution which deals with  the
appointment of the Advocate General for the State. He is  appointed  by  the
Governor and holds office during the pleasure of the Governor  and  receives
such remuneration as the Governor may  determine.  It  cannot  be  anybody’s
case that the Governor, in exercise  of  his  discretion,  may  appoint  any
eligible person as  the  Advocate  General  without  any  reference  to  the
Council of Ministers and  also  ‘withdraw  his  pleasure’  at  any  time  in
respect of the Advocate General thereby removing him from  his  office.  The
purpose of all these provisions is to indicate that the discretion given  to
the Governor is not all-pervasive or all-encompassing  as  is  suggested  by
learned counsel for the respondents.
150.  That  the  functions  of  the  Governor  are  limited  to  matters  of
executive governance or executive issues and the  Council  of  Ministers  is
made explicit through Article 166 of the Constitution  which  provides  that
all executive action of the Government shall be expressed  to  be  taken  in
the name of the Governor,[71] orders and instruments shall  be  executed  in
the name of the Governor[72] and the Governor shall make rules for the  more
convenient transaction of business  of  the  Government  and  allocation  of
business among the Ministers “in so far as it is not business  with  respect
to which the Governor is by or under this Constitution required  to  act  in
his  discretion.”  This  clearly  has  reference  to  Article  163  of   the
Constitution and must be understood as meaning that framing the rules  under
Article 166(3) of the Constitution is not the  discretion  of  the  Governor
but an executive exercise undertaken by the Council  of  Ministers.  Article
167 of the Constitution relates to the duty  of  the  Chief  Minister  of  a
State to communicate the decisions  of  the  Council  of  Ministers  to  the
Governor and furnish information to the Governor.  Chapter II of Part VI  of
the Constitution is, therefore, quite compact and delineates  the  relations
between the Executive and governance of the State.
151.  Chapter III concerns itself with the  State  Legislature  and  several
aspects concerning  the  State  Legislature.  As  far  as  the  Governor  is
concerned, Article 168 in this chapter of  the  Constitution  provides  that
the State Legislature shall  consist  of  the  Governor  and  its  House(s).
[However, in view of Article 158 of the Constitution the Governor is  not  a
member of the State Legislature.]  His status,  therefore,  for  lack  of  a
better word, is that of a constituent  of  the  Legislature.  What  are  his
functions in this capacity? In Rai Sahib Ram Jawaya Kapur  the  Constitution
Bench observed that:  “It  may  not  be  possible  to  frame  an  exhaustive
definition of what executive function  means  and  implies.  Ordinarily  the
executive power connotes the residue of governmental functions  that  remain
after legislative and judicial functions are taken away.” In so far as  this
chapter is concerned, his functions are  certainly  not  legislative  (those
are dealt with in Chapter IV of Part VI of the Constitution); his powers  in
this  chapter  are  also  certainly  not  judicial,  and  therefore  clearly
executive in character.  What are these executive functions?
152.  Amongst others, Article 174 of  the  Constitution  provides  that  the
Governor shall summon the Legislative Assembly from time  to  time  and  may
prorogue and dissolve the Legislative  Assembly.  Summoning  the  House  was
described by Pandit Jawaharlal Nehru in the debate on 16th May, 1951 on  the
First Amendment to the Constitution as “an indirect duty” of the  President.
He went on to say that by the President, he  meant  the  government  of  the
day. Applying this to Article 174  of  the  Constitution,  the  Governor  is
obliged  to  perform  this  indirect  duty.  Since  this  indirect  duty  is
executive in character, it cannot be performed except on the aid and  advice
of the Council of Ministers so as to avoid a “futile operation” and  subject
to the procedure mentioned in the Rules referred to  above.  Proroguing  and
dissolving the House must also follow a similar procedure as  summoning  the
House. It would be doing violence to all canons  of  interpretation  if  the
discretion of the Governor in Chapter III is incorporated in Chapter IV  and
given a wider and greater interpretation than intended in Chapter III.
153.  Addressing the House under  Article  175(1)  of  the  Constitution  or
making a special address under Article 176 of the  Constitution  would  also
be executive functions performed by the Governor on the aid  and  advice  of
the Council of Ministers. There can hardly be any dispute on  this.  Sending
a message to the House under Article 175(2) of the  Constitution  might  not
strictly be an executive function but would  fall  in  a  separate  category
altogether which might be described as having a  quasi-executive  or  quasi-
legislative flavour. This  entitlement  specifically  provided  for  in  the
Constitution  is  exercised  by  the  Governor  as  a  constituent  of   the
Legislature and therefore not  traceable  to  the  aid  and  advise  of  the
Council of Ministers.
154.  There are other executive functions that a  Governor  is  required  to
perform with respect to the Legislature. Some of these are provided  for  in
Article 180 of the Constitution (referred to  above),  Article  184  of  the
Constitution (which pertains to the  Legislative  Council  and  is  in  pari
materia  with  Article  180  of  the  Constitution)  and   recruitment   and
conditions of service of secretarial staff of the  Legislative  Assembly  or
the  Legislative  Council  as  the  case  may  be  (Article   187   of   the
Constitution). If the provisions of Article  163  of  the  Constitution  are
read into all these executive functions relatable  to  the  Legislature  and
the exercise  of  discretion  of  the  Governor  cannot  be  questioned  (as
contended by learned counsel  for  the  respondents)  then  the  Legislature
could and  would  be  dominated  by  the  Governor  –  something  completely
unthinkable  in  a  parliamentary  democracy,  where  the  Governor   cannot
dominate the Executive but could dominate the Legislature!
155.  It is not necessary  for  the  present  purposes  to  delve  into  the
Governor’s role in legislative or quasi-legislative issues, such  as  assent
to Bills (Article 200 and 201 of the Constitution), procedure  in  financial
matters and legislative powers of the Governor  (Chapter  IV).   Nor  is  it
necessary to deal with the relations between the Governor and the  Judiciary
(Chapter V and Chapter VI of Part VI of the Constitution).   All  that  need
be said is that except in specified  matters,  executive  functions  of  the
Governor whether relating to governance issues or issues pertaining  to  the
Legislature are required to be performed by him on the  aid  and  advise  of
the Council of Ministers and the Rules framed by the  House.  No  discretion
is available to him in these matters since he is bound by the  advice  given
to him by the Council of Ministers  and  Article  163  of  the  Constitution
cannot be imported into these matters. The only discretion available to  the
Governor under Article 163 of the Constitution  is  in  respect  of  matters
provided for by or under the Constitution not relatable to  the  Council  of
Ministers and the Judiciary.
156.  In  the  view  that  I  have  taken,  the  question  relating  to  the
interpretation of Article 175 of the Constitution and the  validity  of  the
message of the Governor becomes academic or does not arise  and  it  is  not
necessary or even advisable to answer it. This Court  has  held  on  several
occasions that it is inexpedient to delve into problems that  do  not  arise
and express an opinion thereon.[73]
157.  Therefore, I answer the first three  questions  in  the  negative  and
hold that the fourth question does not arise in  the  circumstances  of  the
case.
158.  The fifth and final question in these appeals is: Whether  the  Deputy
Speaker of the Legislative Assembly of Arunachal  Pradesh  was  entitled  at
law to set aside the order of the Speaker of  the  Legislative  Assembly  of
Arunachal Pradesh by which the Speaker had disqualified fourteen Members  of
the  Legislative  Assembly  of  Arunachal  Pradesh  (including  the   Deputy
Speaker) under the Tenth Schedule of the Constitution?
159.  The question here is not  whether  the  disqualification  of  fourteen
members of the Legislative Assembly is valid or  not.   That  was  a  matter
pending consideration in the Gauhati  High  Court  when  judgment  in  these
appeals was reserved, but has since been  decided.   We  are  not  concerned
with the decision of the Gauhati High Court or the  power  or  propriety  of
the decision of the Speaker.  The narrow  question  is  whether  the  Deputy
Speaker could, by his order dated 15th December, 2015 set  aside  the  order
of the  Speaker  also  dated  15th  December,  2015  disqualifying  fourteen
members of the Legislative Assembly including the Deputy Speaker himself.
160.  The Speaker gave a notice  to  fourteen  members  of  the  Legislative
Assembly on 7th December, 2015 requiring them to show cause why they  should
not  be  disqualified  under  the  Tenth  Schedule  of   the   Constitution.
Thereafter, by an order dated 15th December, 2015 the  Speaker  disqualified
them from their  membership  in  the  Legislative  Assembly.   As  mentioned
above, the correctness of this order and  the  procedure  followed  has  now
been decided by the Gauhati High Court and the correctness of that  decision
is not before us.
161.  The Deputy Speaker passed an order on 15th December, 2015 inter  alia,
on  the  ground  that  the  Speaker  lacked  the  competence  to  pass   the
disqualification order and that he had not followed the  constitutional  and
legal  procedures.   He  had  had  lost   his   competence   to   pass   the
disqualification order since a notice of his removal  dated  19th  November,
2015 was pending and was to come up before  the    Legislative  Assembly  on
16th December, 2015.   In passing his  order  of  15th  December,  2015  the
Deputy Speaker purported to derive his power from the message given  by  the
Governor to the Legislative Assembly on 9th  December,  2015  requiring  the
Deputy Speaker to conduct the proceedings of the  House  on  the  resolution
for removal of the Speaker.  What is important to note is  that  the  Deputy
Speaker was to preside over the House on 16th December, 2015.  He  certainly
had no  derivative  power  from  the  message  of  the  Governor  dated  9th
December, 2015 to take over the functions  of  the  Speaker  or  to  sit  in
judgment over the decision of the Speaker of 15th December, 2015.
162.  That apart, it is now well settled by the decision of  this  Court  in
Kihoto Hollohan v. Zachillhu[74] that the Speaker  while  acting  under  the
Tenth Schedule of the Constitution acts as a Tribunal and his  decision  can
be challenged  only  in  a  court  exercising  constitutional  jurisdiction.
 It was held in Kashinath Jalmi v. Speaker[75] that even  the  Speaker  does
not have the power to review the decision  taken  by  him  under  the  Tenth
Schedule  of  the  Constitution.   Under  these  circumstances,   there   is
absolutely no question of the Deputy Speaker setting aside the order of  the
Speaker passed under the Tenth Schedule of the Constitution.
163.  It is also important to note  that  the  Deputy  Speaker  was  himself
disqualified from the membership of the Legislative Assembly by the  Speaker
and he could certainly not have set aside the order passed against  him  and
in respect of which he would be the beneficiary.  There  is  no  doubt  that
the Deputy Speaker had no authority at all to set aside the decision of  the
Speaker passed under the Tenth  Schedule  of  the  Constitution.  The  fifth
question is answered in the negative.
164.   In the view that I  have  taken,  I  am  of  opinion  that  the  view
expressed by my learned Brothers relating to the power or propriety  of  the
Speaker taking a decision under the Tenth Schedule of the Constitution  with
regard to the fourteen members of the Legislative Assembly does not  at  all
arise in these appeals.
Final order
165.  The appeals are allowed. The  impugned  judgment  and  order  of  13th
January,  2016  passed  by  the  Gauhati  High  Court  is  set  aside.   The
modification  Order  of  9th  December,  2015  passed  by  the  Governor  of
Arunachal Pradesh is unconstitutional and is set aside and the order of  the
Deputy Speaker dated 15th December, 2015 setting  aside  the  order  of  the
Speaker of the same date is also set aside.



       ………………………..J
New Delhi;                                              (Madan B. Lokur)
July 13, 2016
-----------------------
[1]




       (1974) 2 SCC 831
[2]    (1971) 1 SCC 411
[3]    (2005) 2 SCC 92
[4]    (1972) 1 SCC 148
[5]    (1997) 2 SCC 745
[6]    (1997) 8 SCC 191
[7]    (1993) 2 SCC 703
[8]    (2010) 6 SCC 331
[9]    (1994) 3 SCC 1
[10]   (1979) 3 SCC 324
[11]   AIR 1973 (Madras) 371
[12]   AIR 1999 (Bom.) 53
[13]   AIR 1969 SC 903
[14]   AIR 2002 (Gauhati) 7
[15]   (2004) 8 SCC 788
[16]   (2013) 3 SCC 1
[17]   (1973) 4 SCC 25
[18]   (1982) 2 SCC 463
[19]   (2011) 10 SCC 1
[20]   (1968) 72 C.W.N. 328
[21]





       (1977) 4 SCC 608
[22]   (2001) 7 SCC 126
[23]   (2006) 8 SCC 212
[24]   THE RT HON. BARONESS BOOTHROYD, The Role of the Speaker in the 20th
Century, The Parliamentary History Yearbook Trust, Vol. 29, Issue 1, Feb
2010, page 136
[25]    (1992) 1 SCC 309
[26]   (1965) 1 SCR 413 : AIR 1965 SC 745
[27]   (2014) 9 SCC 1
[28]   Laozi, 570-490 BCE
[29]   MANU/GH/0118/2016 [decided on 30th March, 2016]
[30]   9.(1) There shall be a council of ministers, not exceeding ten in
number, to aid and advise the Governor-General in the exercise of his
functions, except in so far as he is by or under this Act required to
exercise his functions or any of them in his discretion :
      Provided that nothing in this sub-Section shall be construed as
preventing the Governor-General from exercising his individual judgment in
any case where by or under this Act he is required so to do.
      (2) The Governor-General in his discretion may preside at meetings of
the council of ministers.
      (3) If any question arises whether any matter is or is not a matter
as respects which the Governor-General is by or under this Act required to
act in his discretion or to exercise his individual judgment, the decision
of the Governor-General in his discretion shall be final, and the validity
of anything done by the Governor-General shall not be called in question on
the ground that he ought or ought not to have acted in his discretion, or
ought or ought not to have exercised his individual judgment.
[31]   http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-
council-of-ministers
[32]   HC Deb 28 February 1935 vol 298 cc1327-63

[33]   http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-
council-of-ministers
[34]   http://hansard.millbanksystems.com/commons/1935/feb/28/clause-9-
council-of-ministers
[35]   HC Deb 05 March 1935 vol 298 cc1787-887 to be found at
      http://hansard.millbanksystems.com/commons/1935/mar/05/clause-12-
special-responsibilities-of
[36]   Sir Alladi Krishnaswamy Aiyar also refers to the “breakdown
provisions” as brought out subsequently in this judgment.
[37]   Constitutional Adviser to the Constituent Assembly
[38]  [39] These quotations have been taken from “India’s Constitution in
the Making” by Sir Benegal Rau (Edited by B. Shiva Rao), Allied Publishers
Private Limited, pages 351 and 352
[40]   Constituent Assembly Debates, Vol.8, 1949, pp.490-491
[41]   Constituent Assembly Debates, Vol.8, 1949, pp.500-502
[42]  [43] Section 50(2) of the Government of India Act, 1935 which reads:
The Governor in his discretion may preside at meetings of the council of
ministers.
[44]   Constituent Assembly Debates, Vol.8, 1949, p.106
[45]   Parliamentary Debates Part II – Proceedings other than Questions and
Answers. Official Report Volume XII, 1951 (15 May 1951 – 6 June 1951).
Third Session (Second Part) of Parliament of India, 1951 = (First
Amendment) Bill 16 May 1951 p.8819
[46]   Parliamentary Debates Part II – Proceedings other than Questions and
Answers. Official Report Volume XII, 1951 (15 May 1951 – 6 June 1951).
Third Session (Second Part) of Parliament of India, 1951 = (First
Amendment) Bill 2 June 1951 p.9957 and 9959
[47]   [1955] 2 SCR 225 (5 Judges)
[48]   (1968) 72 CWN 328
[49]   [1969] 1 SCR 478 (5 Judges)
[50]   (1974) 2 SCC 831 (7 Judges)
[51]   234. Recruitment of persons other than district judges to the
judicial service.—Appointments of persons other than district judges to the
judicial service of a State shall be made by the Governor of the State in
accordance with rules made by him in that behalf after consultation with
the State Public Service Commission and with the High Court exercising
jurisdiction in relation to such State.
[52]   (1971) 1 SCC 411 (5 Judges)
[53]   (1964) 5 SCR 29 (5 Judges)
[54]   AIR 1999 Bombay 53
[55]   (2004) 8 SCC 788 (5 Judges)
[56]   (2005) 2 SCC 92 (5 Judges)
[57]   2. Constitution of District Councils and Regional Councils.- (1)
There shall be a District Council for each autonomous district consisting
of not more than thirty members, of whom not more than four persons shall
be nominated by the Governor and the rest shall be elected on the basis of
adult suffrage:
      xxx xxx xxx
      20-BB. Exercise of discretionary powers by the Governor in the
discharge of his functions.—The Governor, in the discharge of his functions
under sub-paragraphs (2) and (3) of paragraph 1, sub-paragraphs (1) and (7)
of paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4) of
paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, sub-paragraph
(2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-paragraph (1) of
paragraph 14, sub-paragraph (1) of paragraph 15 and sub-paragraphs (1) and
(2) of paragraph 16 of this Schedule, shall, after consulting the Council
of Ministers, and if he thinks it necessary, the District Council or the
Regional Council concerned, take such action as he considers necessary in
his discretion.
      Paragraph 20-BB was inserted by The Sixth Schedule to the
Constitution (Amendment) Act, 1988.
[58]   (2013) 3 SCC 1
[59]   Paragraph 4.3.08
[60]   Paragraph 4.4.03
[61]   The view expressed regarding proroguing and dissolving the Assembly
is not referred to since that issue does not arise in the present case.
[62]   SRO 3524 dated 4th November, 1957
[63]   SRO 446-A dated 1st February, 1958
[64]   Macbeth, Act III Scene IV
[65]   208. Rules of procedure - (1) A House of the Legislature of a State
may make rules for regulating, subject to the provisions of this
Constitution, its procedure and the conduct of its business.
      (2) Until rules are made under clause (1), the rules of procedure and
standing orders in force immediately before the commencement of this
Constitution with respect to the Legislature for the corresponding Province
shall have effect in relation to the Legislature of the State subject to
such modifications and adaptations as may be made therein by the Speaker of
the Legislative Assembly, or the Chairman of the Legislative Council, as
the case may be.
      (3) In a State having a Legislative Council the Governor, after
consultation with the Speaker of the Legislative Assembly and the Chairman
of the Legislative Council, may make rules as to the procedure with respect
to communications between the two Houses.

[66]   151. Any resolution to remove the Speaker or the Deputy Speaker from
office, of which at least fourteen days notice as required under Article
179 of the Constitution has been given shall be read to the Assembly by the
person presiding who shall then request the members who are in favour of
leave being granted to move the Resolution to rise in their places, and if
not less than one fifth of the total numbers of member of the House rise
accordingly, the person presiding shall allow the Resolution to be moved.
If less than one-fifth of the total numbers of member of the House rise,
the person presiding shall inform the member who may have given the notice,
that he has not the leave of the Assembly to move it.

      If notice of a Resolution against the Speaker or the Deputy Speaker
is tabled, the House shall not be adjourned till the provisions of these
Rules are complied with and the motion on no confidence is disposed of
finally.

      The charges in the Resolution moved by a mover against Speaker or
Deputy Speaker should be substantially and precisely expressed.

      The nature of the charges should be within the conduct of Speaker or
Deputy Speaker in the House for the inability to conduct the business in
the House or misappropriation of Assembly property or finance.

      The Resolution duly signed by the mover should be handed over to
Secretary, Legislative Assembly for scrutiny.
[67]   United States of America v. Italy, I.C.J. Reports 1989, p.15
[68]   http://parliamentofindia.nic.in/ls/debates/v11p9m.htm
[69]   (1971) 2 SCC 63 (5 Judges)
[70]   (2001) 7 SCC 126
[71]   (4th Edn., p. 243), Peter W. Hogg, Professor of Law, Osgoode Hall
Law School, York University
[72]   The House of Commons Procedure and Practice, Second Edition, 2009
      http://www.parl.gc.ca/procedure-book-
livre/document.aspx?sbdid=a24e8688-cc45-4245-8f5c-dd32f4aa9b01&sbpidx=3
[73]   Article 166(1) of the Constitution
[74]   Article 166(2) of the Constitution
[75]   Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1
SCC 147
[76]   1992 Supp.(2) SCC 651
[77]   (1993) 2 SCC 703

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