Arunachal Pradesh: The Dismissal of an Elected Government, And After

NEW DELHI: On May 16, 2014 results of the Arunachal Pradesh state elections were announced.The seats contested were 60 and the result was Congress-47, B.J.P. - 11 and Independent -2. Subsequently, a total of 16 Members (out of 60) of the legislative assembly belonging to the Congress party decided to defect.

On Dec 9,2015 the Arunachal Pradesh Governor claiming discretionary power under Article 163 (2) and Article 175 of the Constitution made two remarkable decisions. First, he decided to prepone the legislative assembly session to 16.12.2015 on the basis of a request by BJP MLA’s. Second, he ensured a resolution for removing the speaker was placed as the first item for consideration on the agenda of State Assembly.

On Dec 14, the State Cabinet passed a resolution that the Governor’s act of preponing the assembly was contrary to constitutional provisions and conduct of business of the state assembly. Subsequently, the Congress party moved to disqualify the defecting members under the 10th Schedule of the Constitution (provides for disqualification on ground of defection). On, Dec15, a day later the Speaker as per the anti defection provisions disqualified the rebel members from the INC.

On Dec 16, the Deputy Speaker wrote to the Governor to allow a special sitting of the Legislative Assembly outside the Assembly premises so as to carry out the Governors orders dated Dec 9. The Governor obliged and the Deputy Speaker took charge. He not only revoked the Speakers orders to disqualify the rebel Congress members but also further decided that the Speaker should be removed.

Unbelievably the above decisions of the Deputy Speaker with the blessings of the Governor took place in a community hall and not the Assembly.The decisions were taken as part of an official sitting in the Arunachal Pradesh Legislative Assembly.

The day continued to be eventful with the Deputy Speaker also declaring the agenda for the following day, (1) To show want of confidence of the Chief Minister and his council of ministers through a floor test (2) To show Confidence on Kalikho Pul (a Congress party defector) to lead a new council of ministers. On the very next day, Dec 17, a total of only 33 MLAs including the defectors passed the agenda as decided by the Deputy Speaker in the absence of the remaining MLAs including the Chief Minister and the Council of Ministers.

As a result the Governor and the Deputy Speaker successfully brought down an elected Government and removed the Speaker of the House. The Gauhati High Court stayed the above actions of the Governor and Deputy Speaker. However in a later order a different bench of the High Court upheld the act of the Governor and Speaker.

This latter order of the High Court was challenged at the Supreme Court of India and again the actions of the Governor and Deputy Speaker was stayed. Further the Chief Justice of India set up a special Constitution Bench to urgently hear and decide this issue of grave constitutional importance. The Court was to continue hearing the matter on January 27, 2016. However it seems that the Centre had other ideas. Perhaps realizing that the shocking misuse of constitutional provisions by the Governor could prove embarrassing it took the extreme step of declaring Emergency in Arunachal Pradesh.

Amidst the Republic Day celebrations and a night before the Supreme Court hearing, the President gave the required assent and thereby rendered the court hearing scheduled for the next day inconsequential.

Interestingly, in the previous hearing Harish Salve appearing for the state Governor had made a statement to the Apex Court that as the matter was now being heard no step would be taken to precipitate the situation. However it seems that the Governor was busy preparing reports for the Centre so the proclamation of Emergency could materialize straightaway.

The Supreme Court asked the Attorney General and the Governor what was the tearing hurry to declare Emergency? The Judges also asked for the Governors report justifying a ‘constitutional breakdown’ be submitted immediately, in fact within 15 minutes. However since the report was not available with the counsel, the matter now has listed for hearing after a few days. What will follow now is that the Constitution Bench will test the imposition of Emergency in view of the constitutional law, of which some important aspects to be reflected on are:-

One, as stated in the S.R. Bommai case the Constitution is essentially a political document, even more so when dealing with provisions such as Article 356 (declaration of emergency). In such cases it would be inexcusable to interpret such provisions of law merely on jurisdictional and legal technicalities. In Arunachal Pradesh the Governor exercising his discretionary power (Article 175 and Aricle163) summoned an early session of the legislative assembly, further decided the agenda of such a sitting and eventually sanctioned a session outside the Assembly Building nullifying an elected Government. Such wrongful exercise of power by constitutional heads has a direct repercussion on the will of the people.

Two, Democracy and Federalism are part of the Basic Structure of the Constitution. Constitutional Bodies, Governments, or Political Parties when seen to work against these principles shall be liable to Judicial Review. The Supreme Court in the Bommai case has formed a nuanced argument to allow review of a decision made under Article 356 by the President. The Court by allowing examination of the Governors report placed before the President, can decide whether the Governors report has any merit. In subsequent judgements, the Supreme Court has held that the Governor’s report sent to the President is not the gospel truth and is subject to scrutiny of Courts.

Three, a declaration of Emergency must be the last resort; in case of situations that can be remedied, proclamation of Emergency should be avoided. Especially in this particular case which involves the sensitive border state of Arunachal Pradesh. The imposition of Emergency and dismissal of an elected Government in such a hurry shows complete disregard for the democratic decision of the people of Arunachal Pradesh.

The Centre’s recent actions against elected State Governments poses a serious danger to the basic structure of our Constitution It is important for the BJP to remember that the process of nation building is not confined to the opinion of the Government of the time but flows from the basic structure of the Constitution of India.

(Abhik Chimni is a lawyer)