SC’s Arunachal Verdict Is Good, But Curtails Powers Of Governor & Speaker

On balance, the Supreme Court judgment yesterday (13 July) reinstating the Congress government of Nabam Tuki and dethroning the majority government of Kalikho Pul is just about fair. The BJP, after receiving two hard knocks, once in Uttarakhand and now in Arunachal, will hopefully be wiser about trying to needlessly fish in the troubled waters of Congress politics by using dissidents to establish its own governments.

But the BJP’s political discomfiture will be short-lived if it ends up winning the trust vote, where it currently seems to have the numbers. In a house with 58 effective members (two have resigned), the People’s Party of Arunachal backing Pul claims 30 members, the BJP 11, and the Congress 15. There are two independents. The Congress will have to do as much horse-trading as possible to get the vote to swing its way.

The net effect of the Supreme Court judgment, delivered by a five-judge bench comprising Justices JS Khehar, Madan Lokur, Dipak Misra, NS Ramana and PC Ghose, include the following:

First, the Governor’s freedom of action is now limited to two basic areas: choosing who should be asked to form a government after elections produce an indecisive verdict, or when governments fall of their own accord; when a government’s majority is in doubt, the Governor can ask the Chief Minister to prove his majority on the floor of the house within a specified time. This judgment takes the Bommai verdict, where the court said legislative majority can only be established by a vote in the assembly, to its logical conclusion. Misuse of the governor’s office and article 356 is now near impossible.

Second, the Speaker’s all-powerful role in supporting incumbent governments has also been curtailed. In future, if their own position is under challenge by rebels or dissidents within a ruling party, they can’t take any decision to disqualify MLAs. This is how minority governments have survived, by disqualifying dissidents using the Speaker’s powers under the 10th scheduled of the constitution.

Third, political parties, which enjoyed supreme power over party members in the house, will now find their authority indirectly challenged as the speaker’s role is limited to the period when he himself is unchallenged. The 10th schedule to the constitution disqualifies MLAs (or MPs) from membership of a house if they vote against the party when issued a whip, but this disqualification can happen only after the vote itself has taken place and the dissidents’ defiance is proven. This means MLAs can spike the Speaker’s guns by seeking a vote for his removal – as was the case in Arunachal.

But there are some interesting side issues also emerging.

While curtailing the Governor’s role, the bench also effectively said that corruption and horse-trading should not be his concern. The bench said: “It’s not within the Governor’s realm to embroil himself in any political thicket…the Governor must keep clear of any horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or shouldn’t be leader of a party is a political question to be resolved by the party itself. The Governor cannot make such issues a matter of his concern.” (Italics mine)

This is interesting, for hasn’t the Supreme Court itself inserted into many executive and legislative decisions because of ethical and public concerns? Among them: the fight against black money, the Delhi pollution problem, and the conduct of various corruption-related investigations?

The court also had this to say about the Speaker’s role when his own position is being challenged: “It’s constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the 10th schedule when a notice of resolution of his own removal from the office of Speaker is pending. When the position of a Speaker is under challenge, it’d seem just that the Speaker first demonstrates his right to continue by winning support of the majority.”

In Arunachal, the Speaker Nabam Rebia had disqualified 14 dissident Congress MLAs when a motion to remove him from office was pending. It is not clear if he will have to win the trust vote before Tuki seeks his or whether Tuki’s win or loss will indirectly seal his fate. The court will have to clarify.

Logically, the verdict means future dissidents will first have to target the Speaker’s office, or get him on their side, before voting against the government. This will not save them from disqualification after the party expels them, but it would achieve a change in government first. Governments facing a trust vote will have to expel dissidents first before they start targeting the Speaker in a trust vote.

As a result of the Supreme Court’s ruling, both the office of Governor and the Speaker have been cut to size, partly for good reasons.

The real downside is that court’s own powers to intervene have now gained higher legitimacy.