IMPORTANT POINTS
—(1) Governor is only a formal or constitutional head.
(2) Governor is not assigned any significant role in legislative or executive functioning of State.
(3) Governor is an executive nominee and his appointment flows from aid and advice tendered by Council of Ministers with Prime Minister as Head to President.
(4) Governor’s connectivity to House in matter of sending messages must be deemed to be limited to extent considered appropriate by Council of Ministers headed by Chief Minister.
(5) Governor has no role in disqualification of members of Assembly.
(6) Deputy Speaker has no authority at all to set aside decision of Speaker passed under Tenth Schedule of Constitution.

Headnote:Per Jagdish Singh Khehar (For himself, Pinaki Chandra Ghose and N.V. Ramana), JJ.
       (A) Constitution of India—Articles 163, 179 and 183—Powers and functions of Governor—Governor has been assigned functions and powers, concerning executive and legislative affairs of State—Governor’s power under Article 161 is exercised on aid and advice of Chief Minister and his Council of Ministers—Governor is not assigned any significant role in legislative or executive functioning of State—Inferences drawn in Justice M.M. Punchhi Commission report are in consonance with scheme of functions and powers assigned to Governor with reference to executive and legislative functioning of State and more particularly with reference to interpretation of Article 163—Governor can exercise his functions in his own discretion, in situations where an interpretation of the concerned constitutional provision, could not be construed otherwise—It cannot be contended that Governor has freedom to determine when and in which situation he should take a decision in his own discretion, without aid and advice of Chief Minister and his Council of Ministers—Finality expressed in Article 163(2) would apply to functions exercised by Governor in his own discretion as are permissible within framework of Article 163(1), and additionally, in situations where clear intent underlying a constitutional provision, so requires—Measure of discretionary power of Governor is limited to scope postulated therefor under Article 163(1). (Paras 137 to 140, 142 and 143)
       (B) Constitution of India—Articles 163 and 174—Rules of Procedure and Conduct of Business of Arunachal Pradesh Legislative Assembly, framed under Article 208—Rules 151 and 154—Assembly session—Preponement of—Removal of Speaker—Transgression of constitutional authority by Governor—Governor can summon, prorogue and dissolve House only on aid and advice of Council of Ministers with Chief Minister as Head and not at his own—Governor is an executive nominee and his appointment flows from aid and advice tendered by Council of Ministers with Prime Minister as Head to President—Such a nominee cannot have overriding authority over representatives of people who constitute House or Houses of State Legislature (on being duly elected from their respective constituencies) and/or even Executive Government functioning under Council of Ministers with Chief Minister as Head—Allowing Governor to overrule resolve and determination of State legislature or State executive, would not harmoniously augur with the strong democratic principles enshrined in provisions of Constitution—Constitution is founded on principle of ministerial responsibility—As long as Council of Ministers enjoys confidence of House, aid and advice of Council of Ministers headed by Chief Minister is binding on Governor on the subject of summoning, proroguing or dissolving House or Houses of State Legislature—However, as and when Chief Minister does not enjoy support from majority of House, it is open to Governor to act at his own without any aid and advice—Aid and advice sustains and subsists till Government enjoys confidence of Legislature—Governor never called for a floor test nor was a motion of no-confidence moved against Government—Governor just could not have summoned House in his own discretion by preponing 6th session of Legislative Assembly. (Paras 149 to 154)
       (C) Constitution of India—Articles 163, 175 and 179—Powers and functions of Governor— Governor’s connectivity to House in matter of sending messages, must be deemed to be limited to extent considered appropriate by Council of Ministers headed by Chief Minister—Messages addressed by Governor to House(s) have to be in consonance with aid and advice tendered to him—Issue of removal of Speaker or Deputy Speaker, squarely rests under jurisdictional authority of Members of Legislative Assembly who must determine at their own, whether notice of resolution for removal of Speaker or Deputy Speaker should be adopted or rejected—Participatory role at hands of Governor in matter concerning removal of Speaker can neither be understood nor accepted and may well be considered as unwarranted. (Paras 159 and 160)
       (D) Constitution of India—Tenth Schedule—Powers and functions of Governor—Governor has no role in disqualification of members of Assembly—Exclusive jurisdiction on the issue rests with Speaker of Assembly—Whether Speaker’s actions fall within framework of Constitution or otherwise, does not fall within realm of consideration of Governor—Remedy for any wrong doing under Tenth Schedule lies by way of judicial review—Neither provisions of Constitution nor ‘Conduct of Business Rules’ assign any such role to Governor—It does not lie within domain of Governor to interfere with functions of Speaker—Governor is not a guide or mentor to Speaker—Governor cannot require Speaker to discharge his functions in the manner he considers constitutionally appropriate—Both Governor and Speaker have independent constitutional responsibilities—Governor cannot likewise interfere in activities of Assembly—State Legislature, does not function under Governor—Governor just cannot act as Ombudsman of State Legislature—Messages addressed by Governor to Assembly must abide by mandate contained in Article 163(1)—Impugned message of Governor was beyond constitutional authority vested with Governor—Challenge to an action beyond authority of Governor would fall within scope of judicial review and would be liable to be set aside.(Paras 162 and 163, 168 and 172)
       (E) Constitution of India—Article 179—Powers and functions of Governor—Governor has no role in removal of Speaker or Deputy Speaker under Article 179—Question of adoption or rejection of a notice of resolution for removal of Speaker is to be determined by legislators—If resolution for Speaker’s removal is supported by a simple majority of members of House, motion
       has to be adopted and Speaker has to be removed—Failing which motion has to be rejected—Any action taken by 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 Governor to schedule functioning of Assembly—It is also not in Governor’s domain to schedule agenda of House—Governor has no role with reference to ongoings in Assembly—Governor must keep away from all that goes on within House—As long as democratic process in Assembly functions through Government which has support of majority, there can be no interference at behest of Governor—A constitutional failure as contemplated under Article 356 is quite another matter—So also a constitutional failure under Article 360—Presently, Governor has not treaded procedure postulated for a constitutional breakdown. (Paras 193 and 194)
       (F) Constitution of India—Tenth Schedule—Powers and functions of Governor—There is no justification for Governor to be disturbed about proceedings in connection with disqualification of MLAs under Tenth Schedule—Governor has no role therein—Even Chief Minister and his Council of Ministers have no concern with disqualification proceedings contemplated under Tenth Schedule—Legitimacy or illegitimacy thereof is beyond consideration of Governor—That being constitutional position, there can be no justification in Governor initiating action based on proceedings commenced against MLAs under Tenth Schedule—Any action taken by Governor, based on proceedings being carried on under 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 House, to seek judicial review thereof. (Para 195)
       (G) Constitution of India—Articles 163, 174 and 175—Rules of Procedure and Conduct of Business of Arunachal Pradesh Legislative Assembly, framed under Article 208—Rules 151 and 154—Powers and functions of Governor—Order of Governor dated 9.12.2015 preponing 6th session of Arunachal Pradesh Legislative Assembly, from 14.1.2016, to 16.12.2015 is violative of Article 163 read with Article 174 and as such, same accordingly quashed—Message of Governor dated 9.12.2015, directing manner of conducting proceedings during 6th session of Arunachal Pradesh Legislative Assembly, from 16.12.2015 to 18.12.2015, is violative of Article 163 read with Article 175 and as such, same accordingly quashed—All steps and decisions taken by Arunachal Pradesh Legislative Assembly, pursuant to Governor’s order and message dated 9.12.2015, are unsustainable and same set aside. (Para 196)
       Per Dipak Misra, J. (Assenting View)
       (A) Interpretation of Constitution—Parameters—Judicial interpretation cannot nullify, defeat or distort a constitutional provision or interpretative process cannot be in direct conflict with express provision of Constitution—Emphasis is on flexibility, adaptability and durability and also not to import or implant an interpretation which would be in conflict with express language of Constitution—Constitution, as an organic instrument, has to be interpreted to meet all exigencies. (Paras 5, 8 and 16)
       (B) Constitution of India—Article 179(c)—Removal of Speaker—Resolution to be moved for removal of Speaker is a matter of grave constitutional consequence and intention to move resolution has to precede act of moving of resolution—Power conferred on Speaker under Tenth Schedule is enormous—Under Constitution he is entitled to take part in proceedings and speak and he is in a position to contest—Speaker, while exercising authority/jurisdiction, exercises power of “constitutional adjudication—Court has constricted power of judicial review and restricted it to stage carving out certain extreme exceptions—Speaker when functions as a Tribunal has jurisdiction/authority to pass adverse orders—It is required that his conduct should not only be impartial but such impartiality should be perceptible—It should be beyond any reproach—It must reflect trust reposed in him under the Constitution—Power which flows from introduction of Tenth Schedule by constitutional amendment is required to be harmoniously construed with Article 179(c)—Both provisions of Constitution are meant to subserve purpose of sustenance of democracy which is a basic feature of Constitution—Speaker as a Tribunal has to have complete detachment and perceivable impartiality—When there is an expression of intention to move resolution to remove him, it is requisite that he should stand the test and then proceed—That is intendment of Article 179(c) and said interpretation serves litmus test of sustained democracy founded on Rule of Law. (Paras 513, 16, 18, 20 and 21)
       Per Madan B. Lokur, J.)(Assenting View)
       (A) Constitution of India—Articles 163, 174 and 175—Powers and functions of Governor—It is only Governor who may summon Legislative Assembly but only on advice of Council of Ministers and not suo moto—Governor cannot summon Legislative Assembly in his discretion—If Governor does so there would be no business to transact and summoning House in such a situation would be a futile operation—Governor cannot manufacture any business for House to transact, through a so-called message or otherwise—If Governor disregards advice of Council of Ministers for summoning House, necessary consequences would follow. (Para 39)
       (B) Constitution of India—Articles 163, 174 and 175—Powers and functions of Governor—Governor is only a formal or constitutional head—His executive functions are dependent on aid and advice given by Council of Ministers—Since there is no provision enabling Governor to act in his individual judgment Governor is bound by advice of Council of Ministers with whose aid he acts—This is completely in harmony and consonance with views of Constituent Assembly—Governor has little or no authority over the Executive or Legislature, except to the extent specifically provided for in Constitution. (Para 44)
       (C) Constitution of India—Article 208—Rules of Procedure and Conduct of Business of Arunachal Pradesh Legislative Assembly, framed under Article 208—Rule 3-A—Powers and functions of Governor—Discretion given to Governor in respect of his relations with Legislative Assembly is not only limited and circumscribed by Constitution but also by Rules framed by Legislative Assembly under Article 208—Even procedure for exchange of communications between Governor and Assembly is regulated—Governor would need to respect the Rules at least in his relations with Legislature and cannot override their terms—Governor has no independent discretion or authority to summon Legislative Assembly in terms of Rules of Procedure and Conduct of Business in Arunachal Pradesh Legislative Assembly framed under Article 208 of Constitution or the Arunachal Pradesh Rules of Executive Business, 1987 framed under Article 166 of Constitution to summon Legislative Assembly in his discretion. (Paras 115 and 121)
       (D) Constitution of India—Article 166—Rules of Executive Business—Speaker while acting under Tenth Schedule of Constitution acts as a Tribunal and his decision can be challenged only in a court exercising constitutional jurisdiction—There is absolutely no question of Deputy Speaker setting aside order of Speaker passed under Tenth Schedule of Constitution—Deputy Speaker was himself disqualified from the membership of Legislative Assembly by Speaker and he could certainly not have set aside order passed against him and in respect of which he would be beneficiary. (Paras 162 and 163)
       Facts of Case:
       5th session of Arunachal Pradesh Legislative Assembly was concluded on 21.10.2015. On 3.11.2015, Governor issued an order summoning 6th session of Assembly, to meet on 14.1.2016 in Legislative Assembly Chamber at Naharlagun. Instant order was passed by Governor on aid and advice of Chief Minister and in consultation with Speaker of House. 6th session of House was preponed by Governor from 14.1.2016 to 16.12.2015, by order dated 9.12.2015 indicating manner in which proceedings of House should be conducted. In its support, Governor issued a message on 9.12.2015. These actions of Governor, without aid and advice of Council of Ministers and Chief Minister, constitute foundation of challenge raised by appellants.
       Findings of Court:
       Impugned judgment and order of 13th January, 2016 passed by Gauhati High Court is set aside. Modification Order of 9th December, 2015 passed by Governor of Arunachal Pradesh is unconstitutional and is set aside and order of Deputy Speaker dated 15th December, 2015 setting aside order of Speaker of same date is also set aside.
       Result—Appeals allowed. Judgment and order passed by High Court set aside.

JUDGMENT :

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 b

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2016 Supreme(SC) 548

Cases Referred (29)