Why is the the Supreme Court’s decision to reinstall the Congress government in Arunachal Pradesh, and to restore the status quo ante as prevailed on December 15, 2015, a milestone in the evolution of India’s democracy? The judgment is of this nature because it lays down definite guidelines on the role and functioning of Governors, and the corollary issues of the anti-defection law and the use or misuse of Article 356 of the Constitution. A Governor is appointed under Article 163 of the Constitution and is supposed to be a constitutional authority completely aloof from any political loyalties. In reality, however, Governors are appointed by the ruling party at the Centre and are mostly people who are close to that ruling party, both in terms of ideology and past political activities. Some among them, in fact, act as the veritable agents of the ruling party that appointed them.
Pronouncing upon this pernicious unconstitutional practice, the five-member Constitutional Bench of the Supreme Court clarified categorically that a Governor is not an elected representative, but only an executive nominee whose tenure depends on the pleasure of the President and whose powers flow from the advice of the Cabinet. Justice Khehar was emphatic in saying that “the Governor must remain aloof from any disagreement, discontent or dissension within parties. The activities within a party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations”.
Furthermore, the learned judges set red lines on a Governor’s interference in the proceedings of a state legislature. “As long as the democratic process in the Assembly functions through a government which has the support of the majority, there can be no interference at the behest of the Governor. The Governor must keep away from all that goes on within the House… Interjects at the hands of the Governor, in the functioning of the state legislature, not expressly assigned to him, however bona fide, would be extraneous and without any constitutional sanction”. The Supreme Court’s stinging observations were prompted by the openly partisan conduct of Arunachal Pradesh Governor Jyoti Rajkhowa in favour of the BJP that appointed him. Apart from his alleged role from behind the scenes in engineering the defection of MLAs from the ruling Congress, Mr Rajkhowa committed four cardinal sins.
Firstly, he unilaterally convened the Assembly on December 16, 2015, acting against the advice of the Cabinet to convene it on January 14, 2016. Secondly, he nullified the order of the Speaker disqualifying the defecting Congress MLAs. Thirdly, he countenanced the Assembly being convened in a community hall of a hotel and allowed it to be presided by the deputy Speaker who had already been disqualified by the Speaker under the Anti-defection Act. Fourthly, he even imposed an agenda on this ridiculous gathering, by insisting that the removal of the Speaker must be taken up as the first item of the proceedings. Had the Supreme Court not put a check to this kind of behaviour, it would have legitimised a sordid and unethical script of political activism that was in evidence both in Arunachal and Uttarakhand. The modus operandi is to first break a handful of MLAs from the democratically elected ruling party through blatant horse-trading. Next, when the Speaker rightly disqualifies the defecting MLAs under the Anti-defection Act, to move a resolution for the removal of the Speaker.
Finally, to make an obliging Governor recommend that “the constitutional machinery has broken down”, justifying the imposition of President’s Rule under Article 356 of the Constitution. The Central government then acts upon this recommendation with alacrity, thereby removing a democratically elected government through the back door. The million-dollar question is: Why did the BJP need to do what it did in Arunachal Pradesh and Uttarakhand? Here is a party that has an absolute majority at the Centre and has hardly any need at this juncture to feel insecure or to take such desperate and unethical moves. I can only ascribe it to the arrogance and hubris of power. The age of “Aaya Ram and gaya Ram” was largely eclipsed by the anti-defection law passed in 1985. This law was further strengthened in 2003. The era of large-scale misuse of Article 356, for which all parties, including the Congress must take the blame, is also largely over. The Supreme Court’s judgment in the S.R. Bommai case in 1993 explicitly lays down that the only place to test the majority of a party is the floor of the House.
It is equally clear that the Supreme Court can exercise judicial review over decisions to impose Article 356, and has, indeed, struck down such arbitrary decisions in the past. Even the President has, in at least two landmark cases, rejected the recommendation for President’s Rule. Why then did the BJP make this ill-advised gamble? Who were the dramatis personae behind this unethical politics? And, should not, apart from the Governor, those at the Centre who took this decision be named and accept culpability? As I finish this column, the news has come in that the new Congress chief in Arunachal, Pema Khandu, has majority support, and has given evidence of this to the Governor. This, if proved right, is a further setback for the BJP, that was confident that in spite of the scathing judgement of the SC, its politics of engineering defections and destabilising democratically elected governments would succeed. The immediate priority is that Mr Rajkhowa must resign. And, in future, all other Governors who transgress the SC’s clear instructions should also be made to do so.
