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Governors on notice

POSTED ON 25 JULY 2016

wasbir hussain
EXECUTIVE DIRECTOR, CDPS & VISITING FELLOW, IPCS

The Supreme Court’s landmark judgment reinstating Nabam Tuki’s Congress government in Arunachal Pradesh after half a year is not only a stinging indictment of the governor for his unconstitutional actions, but a message to the political class that they cannot play “go-as-you-like” in state legislatures to bring down elected governments through a game of numbers. The verdict has also established the supremacy of the judiciary in this country and managed to restore the people’s faith in the nation’s federal structure.

The ruling snubbed the governor who acted unconstitutionally by first advancing the House session without the advice of the chief minister and council of ministers, and then facilitating the sacking of the Speaker and recognising a so-called House session at a community hall, presided over by the deputy speaker. By setting aside the governor’s actions, the ruling also reinforced the procedures laid down in the Constitution on the use of Article 356.

Governors in all states will henceforth be bound by this judgment and cannot simply act outside of the constitutional provisions to please their political masters. The key message to governors is that they should act on the advice of their council of ministers and only in extraordinary circumstances could use their “discretion”. The judgment has actually made the position of Arunachal governor J.P. Rajkhowa untenable, and it is yet to be seen if he will rejoin his post at the end of his “sick leave”.

Legalese aside, the ease with which Nabam Tuki rejoined as chief minister and then fell in line to give in to the lingering demand of party MLAs for a change in leadership indicates the inner-party crisis within the Congress in Arunachal. The bout of political instability that the state witnessed in the past six months is the result of inaction on the part of the Congress high command led by Sonia and Rahul Gandhi to resolve the leadership question in Arunachal Pradesh.

Kalikho Pul cashed in on the situation for some time by tactically “merging” his group of 30 Congress MLAs into the near-defunct People’s Party of Arunachal (PPA) to escape the provisions of the anti-defection law. The BJP decided to fish in troubled waters, asking its 11 party MLAs to lend support to Mr Pul. The BJP also tried desperately to get the PPA to merge with itself. In fact, Mr Pul and his entire band of MLAs attended the first conclave of the newly-floated BJP-led North-East Democratic Alliance in Guwahati, and went to the extent of parading his supporters before the media. The Supreme Court verdict changed all that, and everyone seems to have realised that the governor can no longer do anything extraordinary to install people of his or anybody’s choice as chief minister.

The Congress would like to enjoy this “victory” in the sense that it could bring back the party’s government in the state, but the inner-party rebellion is something the high command (meaning Sonia and Rahul) must take note of. It is not just in Arunachal Pradesh that the party is facing a leadership crisis, the same is the case in Meghalaya and Manipur, where it is in power. In Tripura, dissension eventually led to the exit of a number of MLAs to other parties. This has further weakened the moribund Congress in the Left-ruled state. The AICC’s inability to resolve the revolt against Tarun Gogoi in Assam for nearly three years cost the party the Assembly polls in the state, triggered by the exit of key strategist Himanta Biswa Sarma and his joining the BJP. The Congress’ ability to regain power in Arunachal in a rather dramatic way, installing a third-person (not Tuki or Pul) in the form of Pema Khandu at best looks like a temporary reprieve.

The lack of political stability is among the major reasons for poor development in Arunachal, something that is a matter of concern given that it is among the country’s most sensitive border states. As it is, Arunachal legislators have a history of changing parties, and thus political colours, at the drop of a hat. This is certainly something that must have weighed heavily on new chief minister Pema Khandu’s mind as he won the trust vote in the Assembly on Wednesday.

The last thing a state like Arunachal needs is a governor who would add to the instability by exceeding his/her brief, only to be rebuffed by the courts. Of course, the Supreme Court order has highlighted the need for caution in selecting individuals for appointment as governors. It is pertinent at this juncture to look at the recommendations of the Justice Madan Mohan Punchhi Commission, appointed by the Centre in 2007 to look into Centre-state relations. The commission laid down clear guidelines for the appointment of chief ministers. Upholding the view that a pre-poll alliance should be treated as one political party, it lays down the order of precedence that should be followed by the governor in case of a hung House:

1. Call the group with the largest pre-poll alliance having the largest number.
2. The single largest party with the support of others.
3. The post-electoral coalition with all parties joining the government.
4. The post-poll alliance with some parties joining the government and others, including Independents, supporting from outside.

In the case of Arunachal, the governor, instead of taking unnecessary steps like advancing the scheduled House session and so on, should have insisted simply on a trial of strength on the floor of the Assembly. The Punchhi Commission underlined that removal of a governor has to be for a reason related to his discharge of duties, and proposed provisions for impeachment by the state legislature along the same lines as that of the President by Parliament. This, significantly, goes against the doctrine of pleasure upheld by the Supreme Court in an earlier ruling. The question that now arises is this: what if a governor refuses to resign if informally asked to do so by the Centre? Now, in that event, he/she can be impeached by the state legislature. The Arunachal crisis and the Supreme Court verdict has clearly pointed out the limits of a governor’s role, and one only hopes Raj Bhavans will no longer be used as a tool of the party in power in New Delhi to “fix” governments of rival parties in the states. (courtesy: Asian Age)