Trapped in Constitutional Fallacies: Understanding Maharashtra's Political Crisis In The Light Of Nabam Rebia Judgment
In the aftermath of the political crisis in Maharashtra, the case of Nabam Rebia and Bamag Felix V Deputy Speaker has surfaced again, bringing forth questions pertaining to the Governor’s discretion, whether his powers are under judicial review and the constitutionality of such an exercise of power under the purview of Articles 161 and 163(2) of the Indian Constitution.
Between November 2015 and March 2016, a constitutional crisis had ascended in Arunachal Pradesh whereby 11 MLAs from BJP and 2 Independent MLAs had sent a letter to the Governor addressing their discontent with the Speaker. The INC had a majority in the House and had 47 members out of a total seat of 60. Things escalated when 21 MLAs from INC made a plea to remove the erstwhile Chief Minister Nabam Tuki and the Speaker Nabam Rebia on charges of mismanagement. It is then that 14 of the rebelling MLAs from Congress were disqualified by the Speaker, which was quashed by the Deputy Speaker. A decision to conduct a trust vote was proposed and in December 2015 the resolution to remove the Speaker was adopted.
The Government contended that such an advancement was illegal and even after this 33 MLAs voted for the removal of the Chief Minister, voting in favour of Kalikho Pul as the new Chief Minister. Nabam Rebia moved the Guwahati High court that upheld the Governor’s powers under Article 163 and the validity of the legislative procedure under Article 212 was sanctioned with validity.
Rebia further appealed to the Supreme Court against the advancement and interference of the Governor, contending that his powers were beyond that vested under Articles 161 and 163(2) of the Constitution.The defendant contended that a Speaker against whom a no confidence motion is pending cannot decide against the member’s disqualification under the anti-defection law. They also brought in relevant provisions under the Xth Schedule challenging that the Speaker's exercise of power did not conform to fairness, rule of law and natural justice principles.
What is important to note in this regard is that Article 163 talks about discretionary powers of the Governor only in certain exceptional cases and therefore the defendant’s contention that the powers under such provisions are not vulnerable to judicial review had a fallacy somewhere. Under Article 147, a Governor can also summon, prorogue and dissolve the State Legislature, but this power can be vested only in consultation with the Council of Ministers. Thus the Supreme Court had a challenging decision in respect of a question of law in this matter.
The Supreme Court bench turned the entire motion towards the constitutional principles, holding that the judicial review is very much applicable when the questions on summoning, dissolving or advancing is present. The Court also held that the Council of Ministers must also be consulted by the Governor, pulling down his high handedness with the observation that his powers can never be overriding over the legislative members of the State. Thus the principles of sovereignty had also a constitutional backing and therefore a nominated head could never overstep his constitutionally vested perimeters.
The Court also held that the powers of the Governor under Article 174 is not based on mere discretion and follows the rarest of the rare principle.The consultation with the Council of Minister that has been held to be a prerequisite by the apex court in this regard. The question of whether the Speaker could disqualify MLAs under Article 179(C) was also answered by the Court. It stated that since the removal would only be possible by resolution of members present and voting, the disqualification was perhaps a means to weaken the resolution against the Speaker which was definitely unconstitutional. However, President’s rule was imposed later in the State, which did not result in fruition as Nabam Tuki became the Chief Minister and reinstated the State Government which too dismantled when he lost in the floor test.
While the Cabinet Crisis in Maharashtra dismantled the complete legislative structure, the Supreme Court upheld a principle of constitutional morality. In the age of changing political climates, the democratic loyalties and party obligations are a myth. In this case as well, the Speaker’s and Governor’s tussle led the way for Ekanath Shinde to form the new Government with support from BJP.
The Shinde loyalists moved a no-confidence against the Deputy Speaker who in turn served a disqualification notice to the rebel MLAs in the Shiv Sena. Even in 2023, the decision of the previous bench headed by Justice Ramana has certain unanswered grounds. The question of “ stop gaps” has greater implications than serving the purpose of constitutional morality. The present CJI and his Constitutional bench referred the same to a larger bench to maintain the judicial decorum which needs more than five judges to settle. That shall only be able to answer the substantive questions of law as has been upheld by Justice Chandrachud’s bench. It must thus be noticed that the previous judgment in 2022 only eased the conditions for Ekanath Shinde’s government to file responses by giving it more time to file reply to the notices in obligation of the principles of natural justice.
It is imperative to note that the Constitutional bench of 2023 had highlighted how the apex court missed out the observations by itself in the case of Kihoto Hollohan v Zachillhu that upholds the impartiality of the Speakers while presiding over case under the provisions of the Xth Schedule. Thus, it is only a matter of time when the supersession can be determined- in respect to whether the disqualification can be made when one is himself under the effect of a vote of no confidence or whether the provisions of Article 181 overshadows the same rendering the Speaker bereaved of his powers while a resolution for his removal is passed.
