New Delhi, Jan. 21: A five-judge Constitution bench dealing with the Arunachal Pradesh row today wondered whether the governor of a state, where a majority of the legislators withdraw their support to the chief minister, should still be under obligation to conduct the floor test only with the consent of the chief minister or should he act on his own?
The bench posed the question to eminent jurist Fali Nariman, who appeared for Arunachal Speaker Nabam Rebia. The senior advocate had insisted that even if a chief minister purportedly loses the confidence of a majority of MLAs, the governor, under Article 174, cannot on his own convene, advance or postpone an Assembly session without the consent of the chief minister and his council of ministers.
Arunachal governor J.P. Rajkhowa had preponed the Assembly session called by Rebia from January 14 to 18 to a three-day session from December 16. Rebia had called the move unconstitutional.
On December 14, Rebia had disqualified Deputy Speaker T. Norbu Thongdok and 13 other rebel Congress legislators under the anti-defection law but his order was "quashed" by Thongdok the very next day at a proceeding held in a community hall. The "session", attended by 20 dissident Congress MLAs, including the disqualified 14, 11 BJP legislators and two Independents, also "impeached" the Speaker and "elected" dissident Congress MLA Kalikho Pul as the new chief minister. The Congress had 47 MLAs in the 60-member House before the disqualification.
"Supposing, let us put it hypothetically, 90 per cent of MLAs, in a House of say 100 MLAs, say we are with Mr X and not the chief minister. What should the governor do? Can't he convene the House on his own?" Justice Dipak Misra, one of the judges on the bench, asked Nariman.
The counsel said, "He (the governor) should ask the chief minister to convene (the House). The chief minister can say it is within my powers (to convene)".
The bench, also comprising Justices J.S. Khehar, Madan B. Lokur, P.C. Ghose and N.V. Ramana, then asked, "The 90 per cent of MLAs say we are with X and not Y. Then can he (governor) conduct a floor test?"
Nariman said the governor is duty-bound to consult the chief minister to convene the House and cannot use his own discretion to summon the Assembly as has happened in Arunachal Pradesh. "(Even) If the governor is satisfied that the chief minister has lost the majority, still he would ask the chief minister to summon the House," he said.
Nariman admitted that in extraordinary circumstances, if the chief minister refuses to convene the House, then the governor may direct the House to be convened. But in Arunachal, he said, no rule has been violated or "cracked" by the chief minister warranting the governor to exercise his extraordinary powers under the Constitution.
Another senior counsel, Kapil Sibal, who today wound up his three-day-long arguments on behalf of Rebia, told the court that the governor is a link between the government and the House and, therefore, should not interfere in the affairs of the legislature.
"The power to summon, prorogue and dissolve the House is given to the chief minister and council of ministers and no part of that power can be exercised by the governor in his individual discretionary capacity," Sibal said.
Citing an earlier judgment of the apex court's Constitution bench in the S.R. Bommai and Rameshwar Singh cases, Sibal said the governor has no role in dealing with the Tenth Schedule (disqualification of defectors or rebel groups). "Governor should keep away from political thicket and the Speaker alone will deal with that. The governor has no role in the Tenth Schedule. His decision to summon the House earlier to the one already decided by the chief minister and council of ministers by exercising his discretion is unconstitutional," he said.
Nariman will continue his arguments at 2pm tomorrow.