Lessons from Uttarakhand and Arunachal: What court orders on Central rule say

The constitutional courts have stated that a Governor must remember he is not a democratically elected representative.

Written by Utkarsh Anand | New Delhi | Updated: July 15, 2016 11:37 am
arunachal pradesh, arunachal pradesh verdict, nabam tuki, jyoti prasad rajkhowa, Harish Rawat , arunachal pradesh, Uttarakhand President’s Rule, Arunachal Pradesh President’s Rule, Modi govt, arunchal president rule, congress, bjp, arunachal pradesh, arunachal pradesh verdict, arunachal pradesh congress, arunachal pradesh government, arunachal pradesh governor, governors rule, governor rule, india news Reinstated Arunachal Pradesh Chief Minister Nabam Tuki in New Delhi on Wednesday. (Source: PTI)

With the Supreme Court driving the return of Congress governments in two states in less than three months, the BJP government at the Centre has earned the dubious distinction of having been pushed back on the imposition of President’s Rule in perhaps the quickest succession in Indian judicial history.

The Presidential proclamations brought the office of the Governor in both states under cloud, prompting the top court to lay down contours of power that could be validly exercised by the Centre through the Governor, particularly when different parties are in power at the Centre and in the state.

The legal defeats of the central government have also reaffirmed the role and authority of the constitutional courts, which have underscored forcefully the significance of democratically elected governments in states at a time when a different party has a brute majority at the Centre.

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While the role of the Centre came under the courts’ scanner in Uttarakhand where the Presidential proclamation was challenged, the role of the Governor was scrutinised in Arunachal’s case. A Supreme Court-ordered floor test helped the Congress regain power in Uttarakhand, whereas in Arunachal, the “unconstitutional” exercise of powers by the Governor was declared sufficient to propel the Congress government back at the helm.

The upshot of the judgments by the constitutional courts in the two cases can be summed up by the opinion expressed by the five-judge Constitution Bench on the ambit of powers with the Centre, which has consistently maintained that imposition of President’s rule was its exclusive prerogative.

“It must be appreciated that no one is above the law and equally, no one is not answerable to the law…,” Justice Madan B Lokur held in his concurring judgment that restored the Congress government in Arunachal this week.

Wednesday’s verdict was also the first to not only quash the Governor’s decisions leading to President’s Rule, but to turn the clock back to reinstate the previous government. In two earlier cases, the apex court had refrained from reinstating the previous government, even while it held the proclamation to have been wrongly issued. In Bommai’s case, the previous government was not restored because of the passage of time, whereas in Rameshwar Prasad’s case, fresh elections had been notified.

The judgments by the Supreme Court and the Uttarakhand High Court have elucidated the significance of the “principle of responsible government” and the necessity of a “comity” between the constitutional functionaries “to further the constitutional vision of democracy in the larger interests of the nation”.

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Regretting what the Constitution Bench on Wednesday described as “a thrashing to the Constitution and a spanking to governance”, the constitutional courts have outlined that dislodging a democratically elected government through a Presidential proclamation must happen in extremely rare circumstances, and that the Governor, in such instances, must “keep clear of any political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness”.

The courts have stated that a Governor must remember he is not a democratically elected representative, and therefore, he cannot assume powers of a responsible government and act without the aid and advice of the Chief Minister and his Council of Ministers. The judgments are guiding directions to the Governors to act dispassionately and disassociate themselves from the political affiliations once they resume the constitutional posts.

The judgments further define the specific powers of the Governor, saying that when he believes that the state government has lost the confidence of the majority, he could propose a floor test and then send a report to the President. Under no other circumstances, the courts have now held, can the Governor act without aid and advice.

Also emphasising the role of the Speaker of the Legislative Assembly, the judgments have said that no other authority, including the Governor, can direct the Speaker on how to conduct the proceedings of the House, while reiterating that in a democracy, the floor test is the real test to prove majority.

utkarsh.anand@expressindia.com

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