Deep in Disarray

Context: Manipur Assembly failed to hold a Special Session to discuss the ethnic violence in the State as the Raj Bhavan did not issue a notification to convene it despite a recommendation from the State Cabinet. As per the official statement of the State Cabinet, it had recommended the Governor to summon the fourth session of the 12th Manipur Legislative Assembly on August 21. This followed a similar request from the government on July 27. The previous session of the Assembly was adjourned sine die in March, more than a month before the clashes started on May 3. The next session has to be held before 2nd September according to Article 174.

Governor has power to summon the house as per Article 174 of the Indian Constitution

• SC referred Constituent Assembly debates and noted that the framers of the Constitution expressly and consciously did not grant exclusive power to the Governor to summon or dissolve the House.
• SC discussed that Article 153 of the Draft Constitution (which later became Article 174 in the present constitution), dealt with the powers of the Governor, was substantially altered to indicate that the constitution framers did not want to give Governors the discretion in summoning of the Assembly.
• After debating the intention of the framers, the court concluded that “the Constitution makers 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. 
• Thus, the Supreme Court in Nabam Rebia judgment decided that 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.  

Nabam Rebia & Bamang Felix v Deputy Speaker (Arunachal Pradesh)

Speaker Rebia petitioned that the Governor’s act of interfering in the functioning of the State legislature fell outside the scope of Article 161 and Article 163(2).

• Quashed Governor’s Order to Prepone the Assembly Session – The Constitution Bench quashed the Governor’s order dated 9.12.2015 preponing the 6th session of the Arunachal Pradesh Legislative Assembly by a month without consulting the Chief Minister, Council of Ministers, or the Speaker, for violating Article 174. 
• Governor’s authority to call, dissolve, and advance a session is subject to judicial review –
• Governor’s Power under Article 174 not a discretionary power – 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 under Article 174.
• Powers of the Governor are not absolute – Referring to Article 163,the Court noted that the Governor does not have vast discretionary powers and is necessarily bound by the constitutional framework. According to Article 163, the Governor may only exercise this power with the assistance of the Council of Ministers and Chief Minister.
• Speaker cannot disqualify members when a motion of removal is pending against him – Speaker’s decision to disqualify rebelled MLAs under Article 179(c) amounted to an attempt to circumvent the votes of “all the then members”, and as such, the Speaker’s decision was unconstitutional. 
• President’s Rule Unconstitutional – Supreme Court reinstalled the previous government and declared all of the Governor’s actions that led to the implementation of President’s Rule unconstitutional. The Court also ordered a floor test to determine the Government’s majority, restoring the floor test’s credibility.
• The Court also overruled the verdict of the Guwahati High Court which found that the Governor’s notice was unconstitutional because it breached Article 163 read with Article 174 of the Indian Constitution.   

Nebam Rebia Judgment has been referred to Seven Judge Constitution Bench

In the case of Subhash Desai v Principal Secretary, Governor of Maharashtra & Ors, CJI’s Bench while hearing the Shiv Sena political crisis issue referred the Five Judge Constitution Bench Judgment of Nebam Rebia to a larger Seven Judge Bench based on the following reasons:

• First, according to Kihoto Hollohan v Zachillhu (1992), the Court cannot interfere in the interlocutory stage of disqualification proceedings as per the Tenth Schedule. As per Nabam Rebia, disqualification proceedings would be stopped if a notice of intention to remove the Speaker was filed. This would amount to interference. 
• Second, the Bench in Nabam Rebia failed to consider the possible misuse of this decision. MLAs undergoing disqualification would simply file a notice of intention against the Speaker and stop the proceedings. 
• Third, disabling the speaker would take away the role of the Speaker as a Tribunal under the Tenth Schedule. It would disrupt the functioning of the Speaker, and therefore the Tribunal, in hearing disqualification proceedings. It would then create a ‘constitutional hiatus’.