# f2016] 6 S.C.R. 1 NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER AND OTHERS

- **Citation:** [2016] 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2015-12-09
- **Case number:** Civil Appeal Nos. 6203-6204of2016
- **Bench:** Jagdish Singh Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose, N. V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f2016-6-s-c-r-1-nabam-rebia-and-bamang-felix-v-deputy-speaker-and-others-31510
- **Pages:** 294

## Headnote

CONSTITUTION OF IND/A:
Art.155 - Appointment and status of Governor - Held: A
Governor is appointed by a warrant issued under the hand and
seal of the President under Art.155, and his term of office enures
under Art.156, during the pleasure of the President - A Governor
is an executive nominee, and his appointment flows from the aid
and advice tendered by the Council ·of Ministers with the Prime
Minister as the head, to the President.
Art. 163 - Power of Governor to exercise his discretion -
Scope of - Held: Art.163 does not give the Governor a general
discretionary power to act against or without the advice of his
Council of Ministers - The area for the exercise of his discretion is
limited - Even in this limited area, his choice of action should not
be arbitrary or fanciful - It must be a choice dictated by reascm,
actuated by good faith and tempered by caution - Under Art.163(1)
the discretionary power of the Governor extends to situations,
wherein a constitutional pr.ovision expressly·requires the Governor
to act in his own discretion - Any discretion exercised beyond the
Governor '.s jurisdictional authority, would certainly be subject to
iudicial review - The judgment rend_ered in the Mahabir Prasad
Sharma by the High Court of Calcutta does not lay down the correct
legal position as it confers excessive powers on the Governor, well
beyond his status as a formal or constitutional head of the Executive
- The' constitutional position declared therein, With reference to
Af't.163(2), is accordingly set aside.
Arts.163, 17 4, 179 - Removal of the Speaker (or the Deputy
Speaker) under Art.179 - Role of Governor:._ Held: Governor has
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no role whatsoever, in the removal of the Speaker (or the Deputy
Speaker) under Art.179 - The question of adoption or rejection of
a notice of resolution, for the removal of the Speake1~ is to be
determined by the legislators - If the resolution for the Speakers
removal is supported by a simple majority of the members of the
House, the motion has lo be adopted, and the Speaker has to be
removed - Failing ll'hich, the motion has to be rejected -Any action
taken by the Governor, based on disputations, with reference to
activities in ll'hich he has no role to play, is liable to be considered
as extraneous.
Arts. 163, 166, 168 - Powers of Governor to exercise executive
and legislation function - Held: Governor has a limited scope of
authority, relating to the exercise of executive functions, in his own
discretion, i.e., without any aid and advice - The said limited power
of the Governor is exercisable in situations, expressly provided for
"by or under" the provisions of the Constitution - Likewise, even
though Art.168 includes the Govern01; and pronounces him to be a
part of the State Legislature, the provisions of the Constitution extend
no legislative responsibility to him, within the precincts of the House
or Houses of the State Legislature -
Governor does not participate
in debates within the Legislature, nor does he have any role in any
activity which would result in the passing of a Bill, on the floor of
the House -
All in all, the legislative jimctionality constitutionally
extended to the Governor, is extremely limited.
Arts.163, 174, 179 - Role of Governor in scheduling the
functioning of the Assembly - Held: It is not for the Governor to
schedule the functioning of the Assembly - It is also not in the
Governor~· domain, to schedule the agenda of the House - The
Governor has no role ll'ith reference to the ongoings in the Assembly
- The Governor must keep away. ji·om all that goes on, within the
House - The order of the Governor dated 9.12.2015 preponing the
6th session of the Arunachal Pradesh Legislative Assembly, from
14.1.2016, to 16.12.2015 is violative of Art.163 r.w. Art.174 and as
such, is quashed- The message of the Governor dated 9.12.2015,
directing the manner of conducting proceedings during the 61h session
of

## Text

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f2016] 6 S.C.R. 1
NABAM REBIA, AND BAMANG FELIX
v.
DEPUTY SPEAKER AND OTHERS
(Civil Appeal Nos. 6203-6204of2016)
JULY 13,2016
[JAGDISH SINGH KHEHAR, DIPAK MISRA,
MADAN B. LOKUR, PINAKI CHANDRA GHOSE
AND N. V. RAMANA, JJ.]
CONSTITUTION OF IND/A:
Art.155 - Appointment and status of Governor - Held: A
Governor is appointed by a warrant issued under the hand and
seal of the President under Art.155, and his term of office enures
under Art.156, during the pleasure of the President - A Governor
is an executive nominee, and his appointment flows from the aid
and advice tendered by the Council ·of Ministers with the Prime
Minister as the head, to the President.
Art. 163 - Power of Governor to exercise his discretion -
Scope of - Held: Art.163 does not give the Governor a general
discretionary power to act against or without the advice of his
Council of Ministers - The area for the exercise of his discretion is
limited - Even in this limited area, his choice of action should not
be arbitrary or fanciful - It must be a choice dictated by reascm,
actuated by good faith and tempered by caution - Under Art.163(1)
the discretionary power of the Governor extends to situations,
wherein a constitutional pr.ovision expressly·requires the Governor
to act in his own discretion - Any discretion exercised beyond the
Governor '.s jurisdictional authority, would certainly be subject to
iudicial review - The judgment rend_ered in the Mahabir Prasad
Sharma by the High Court of Calcutta does not lay down the correct
legal position as it confers excessive powers on the Governor, well
beyond his status as a formal or constitutional head of the Executive
- The' constitutional position declared therein, With reference to
Af't.163(2), is accordingly set aside.
Arts.163, 17 4, 179 - Removal of the Speaker (or the Deputy
Speaker) under Art.179 - Role of Governor:._ Held: Governor has
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no role whatsoever, in the removal of the Speaker (or the Deputy
Speaker) under Art.179 - The question of adoption or rejection of
a notice of resolution, for the removal of the Speake1~ is to be
determined by the legislators - If the resolution for the Speakers
removal is supported by a simple majority of the members of the
House, the motion has lo be adopted, and the Speaker has to be
removed - Failing ll'hich, the motion has to be rejected -Any action
taken by the Governor, based on disputations, with reference to
activities in ll'hich he has no role to play, is liable to be considered
as extraneous.
Arts. 163, 166, 168 - Powers of Governor to exercise executive
and legislation function - Held: Governor has a limited scope of
authority, relating to the exercise of executive functions, in his own
discretion, i.e., without any aid and advice - The said limited power
of the Governor is exercisable in situations, expressly provided for
"by or under" the provisions of the Constitution - Likewise, even
though Art.168 includes the Govern01; and pronounces him to be a
part of the State Legislature, the provisions of the Constitution extend
no legislative responsibility to him, within the precincts of the House
or Houses of the State Legislature -
Governor does not participate
in debates within the Legislature, nor does he have any role in any
activity which would result in the passing of a Bill, on the floor of
the House -
All in all, the legislative jimctionality constitutionally
extended to the Governor, is extremely limited.
Arts.163, 174, 179 - Role of Governor in scheduling the
functioning of the Assembly - Held: It is not for the Governor to
schedule the functioning of the Assembly - It is also not in the
Governor~· domain, to schedule the agenda of the House - The
Governor has no role ll'ith reference to the ongoings in the Assembly
- The Governor must keep away. ji·om all that goes on, within the
House - The order of the Governor dated 9.12.2015 preponing the
6th session of the Arunachal Pradesh Legislative Assembly, from
14.1.2016, to 16.12.2015 is violative of Art.163 r.w. Art.174 and as
such, is quashed- The message of the Governor dated 9.12.2015,
directing the manner of conducting proceedings during the 61h session
of the Arunachal Pradesh Legislative Assembly, from 16.12.2015
to 18.12.2015, is violative of Art.163 1:w. Art.175 and as such, is
quashed - All steps and decisions taken by the Arunachal Pradesh
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
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AND OTHERS
Legislative Assembly. pursuant to the Governors order and message
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dated 9.12. 2015, are unsustainable - The same are accordingly set
aside.
Art.163(1) - Expression 'required' - Held: The expression
'required' signifies that the Governor can exercise his discretionary
powers only if there is a compelling necessity to do so.
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Art.163 - Historical background behind its enactment -
Discussed - Government of India Act, 1935 - s.50 - Indi.a
(Provisional Constitution) Order, 1947 - Paragraph 3(2). (per
Madan B. Lokur, J.)
Arts.163, 174 - Relationship of the Governor vis-a-vis the
Executive and the relationship of the Governor vis-a-vis Legislature
- Distinction between - Art.163 deals with the relationship of first
category and Art.17 4 deals with the relationship of second
category. (per Madan B. Lokur, J.)
Art.163(1) - Governor bound by the advice of his Councilof
Ministers - Exceptions - Held: There are only three exceptions -
Governor may in exercise of his functions act in his discretion as
conferred by the Constitution; the Governor may in exercise of his
functions, act in his discretion as conferred under the Constitution;
and the Governor may in exercise of his functions act in his
individual judgment in instances specified by the Constitution. (per
Madan B. Lokur, J.)
Art.163 - Interpretation of - Reference made to reports of
Justice Sarkaria Commission and Justice Punchhi Commission on
Union-State Relations to define the role of Governor - Justice
Sarkaria Commission looked at Art.163(1) in two parts namely, the
Governor exercising his discretion when required by the Constitution
and when required under the Constitution - Functions of Governor
placed in four categories i.e. Governor acting in his discretion; in
his individual judgment; in his discretion independently of the
Council of Ministers and in in his discretion under the Constitution
- Justice Punchhi Commission did not disagree with the Justice
·Sarkaria Commission on any issue relating to the functions and
duties of the Governor - No reason to take view different from that
expressed by these reports. (per Madan B. Lokw; J.)
Art.163, 174 - Duty of Governor when advice of Council of
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J\,{inisters not available - Options available to the Governor - In
dealing with the situation in Arunachal Pradesh, the Governor was
obliged to adhere to and follow the constitutional principle, that is
to be bound by the advice of Council of Ministers - In the event
that advice was not available and re!>ponsible government was not
possible, the Governor could have resorted to the .. breakdown
provisions" and left it to the President to break the impa,_sse -
Governor had another option - If Governor had any doubt about
the continuance of a responsible government as a result of the
shenanigans that were going on in Arunachal Pradesh , he could
very well have required the Chief Minister to prove that he had the
confidence of the Assembly - Therefore, the unilateral act of
summoning the Assembly by the Governor was certainly not in the
language of the law or the spirit of parliamentary democracy and
responsible government and is declared unconstitutional. (per
Madan B. Lokur, J.)
Art.17 4 - Power of Governor vested under Art.17 4 - Exercise
of, without any aid and advice - Scope of - Held: In ordinary
circumstances during the period when the Chief Minister and his
Council of Ministers enjoy the confidence of the majority of the
House, the power vested with the Governor under Art.174, to
summon, prorogue and dissolve the House(!>) must be exercised in
consonance with the aid and advice of the Chief Minister and his
Council of Ministers - In the above situation, he is precluded to
take an individual call on the issue at his own will, or in his own
discretion - In a situation where the Governor has reasons to believe,
that the Chief Minister and his Council of Ministers have lost the
confidence of the House, it is open to the Governor, to require the
Chief Minister and his Council of Ministers to prove their majority
in the House, by a floor test - Only in a situation, where the
Government in power on the holding of such floor test is seen to
have lost the confidence of the majority, it would be open to the
Governor to exercise the powers vested with him under Art.174 at
his own, and without any aid and advice - Since it is not a matter of
dispute, that the Governor never called for a floor test, it is
reasonable to infer, that the Governor did not ever entertain any
doubt, that the Chief Minister and his Council of Ministers were
still enjoying the confidence of the majority, in the House - Nor
was a motion of no confidence moved against the Government - In
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
AND OTHERS
the above situation, the Governor just could not have summoned
the House, by his order dated 9.12.20 I 5, in his own discretion, by
preponing the 6
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" session of the Legislative Assembly ji·om 14.I.20I6
to I6.I2.20I5.
Art. I 74 - Historical background behind its enactn~ent -
Discussed -
Government of India Act, I935 -
s.62. (per
Madan B. Lokw; J.)
Art. I 79 - Power of Governor to remove Speaker/Deputy
Speaker - Held: Issue of removal of the Speaker (or Deputy
Speaker), squarely rests under the jurisdictional authority of the
Members of the Legislative Assembly, who must determine at their
own, whether the notice of resolution for the removal of the Speaker
(or the Deputy Speaker) should be adopted or rejected - Neither
the Chief Minister nor the Council of Ministers has any determinative
role on the subject of removal of the Speaker/Deputy Speaker -
Their individual participation is limited to their individual vote either
in favour or against the motion for the removal of the Speaker/
Deputy Speaker - Even that bit is not available to the Governor -
Therefore no direct or indirect role can be assumed by Governor
under Art. I 79(c).
Art. I 79(c) - Interpretation of expression "all the then
members" - Held: Art. I 79(c) provides, that a Speaker (or Deputy
Speaker), "may be removed ji·om his office by a resolution of the
Assembly passed by a .majority of all the then members of the
Assembly" - The words "passed by a majority of all the then
members", would prohibit the Speaker from going ahead with the
disqualification proceedings under the Tenth Schedule, as the same
would negate the effect of the words "all the then members", after
the disqualification of one or more MLAs from the House - Any
change in the strength and composition of the Assembly, by
disqualifying sitting MLAs, for the period during which the notice
of resolution for the removal of the Speaker (or the Deputy Speaker)
is pending, would conflict with the express mandate of Art. I 79(c),
requiring all "the then members" to determine the right of the
Speaker to continue. (per Dipak Misra, J.)
Art. I 79(c), first proviso - Interpretation of- Held: When there
is an expression of intention to move the resolution to remove
Speake1; it is requisite that he should stand the test and then proceed
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- That is the intendment of Art.179(c) and the said interpretation
serves the litmus test of sustained democracy founded on rule of
law - It would be anathema to the concept of constitutional
adjudication, if the Speaker is allowed to initiate proceedings under
Tenth Schedule after intention to remove him from his office is moved
- The fourteen days period being mandatory, the words "all the
then members" gain importance. (per Dipak Misra, J.)
Art.181 - Nature of participation of Speaker when the question
of his removal arises - Discussed. (per Dipak Misra, J.)
Office of Speaker - Held: Speaker has duty to see that
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business of the House is carried out in a decorous and disciplined
manner -
Importance of office of Speaker, discussed. (per
Dipak Misra, J.J
Art.356 - Scope of - Held: This Article provides an escape
route to the Governor - Governor can make a report to the President
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in the event there is a failure of constitutional machinery in the
State - This escape route is available in case where the Governor
dismisses a Government but the Government refuses to recognize
the dismissal order.(per Madan B. Lokur, J.)
Art.371-H - Scope of- Held: Art.371-H provides for the
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Governor exercising his "individual judgment" in discharge of his
functions relating to law and order in Arunachal Pradesh - Therefore,
the exercise of individual judgment by the Governor of Arunachal
Pradesh is permitted by the Constitution, but is limited to issues of
law and order only. (per Madan B. Lokur, J.)
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Tenth Schedule, Paragraph 6 - Role of Governor in
disqualification of members of the Assembly - Held: Governor has
no role, in the disqualification of members of the Assembly - The
·exclusive jurisdiction in this issue, rests with Speaker of the Assembly,·
under Paragraph 6 of the Tenth Schedule - Whether Speakers
actions fall within the framework of the Constitution, or otherwise,
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does not fall within the realm of consideration of the Governor -
The remedy for any wrong doing under the Tenth Schedule, lies by
way of judicial review - Neither the provisions of the Constitution
nor the 'Conduct of Business Rules' assign any such role to the
Governor - Judicial review.
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Tenth Schedule - Power of Governor to interfere with the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
AND OTHERS
functions of the Speaker - Held: It does not lie ·within the domain
of the Governor, to interfere with the functions of the Speaker -
Governor is not a guide or mentor to _the Speaker - Governor cannot
require the Speaker to discharge his functions in the manner he
considers const~tutionally appropriate - Both the Governor and
the Speaker have independent constitutional responsibilities.
Tenth Schedule - Propriety of Speaker in conducting
proceedings under the Tenth Schedule when his own position as
the Speaker of Legislative Assembly is under challenge - Held: The
constitutional purpose and constitutional har111ony would be
maintained and preserved, if a Speaker refrains from adjudication
of a petition for disqualification under the Tenth Schedule, whilst
his own position, as Speaker. is under challenge - This would also,
allow the two provisions (Art.179(c), and the Tenth Schedule) to
operate in their individual constitutional space, without encroaching
on the other - Therefore, it would be constitutionally i111permissible
for a Speaker to adjudicate upon disqualification petitions under
the Tenth Schedule, while a notice of resolution for his own removal
from the office of Speaker, is pending.
Tenth Schedule - Power, position and the status of office of
Speaker - Held: Speaker enjoys the power of constitutional
adjudication - He is expected to 111aintain propriety as an
adjudicator - Speaker when functions as a tribunal has the
jurisdiction/authority to pass adverse orders - Power which flows
from the introduction of Tenth Schedule by constitutional amendment
is required to be harmoniously construed with Art. J 79(c) - Both the
provisions of the Constitution are meant to sub-serve the purpose
of sustenance of democracy which is basic feature of the
Constitution. (per Dipak Misra, J.)
Tenth Schedule - Power of Deputy Speaker of Legislative
Assembly of Arunachal Pradesh to set aside the order of the Speaker
of the Legislative Assembly of Arunachal Pradesh by which the
Speaker had disqualified fourteen 111e111bers of the Legislative
Assembly of Arunachal Pradesh (including Deputy Speaker) under
the Tenth Schedule of the Constitution - Held: Deputy Speaker
had no authority to set aside the decision of the Speaker passed
under the Tenth Schedule - Moreover, Deputy Speaker was himself
disqualified from the membership of the Legislative Asse111bly by the
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Speaker and he could certainly not set aside the order passed against
him and in respect of which he would be beneficiary.
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INTERPRETATION OF STATUTES: Constitution of India -
Guidelines for understanding the text, context, the words and the
purpose of a constitutional provision - Discussed.
RULES OF PROCEDURE AND CONDUCT OF BUSINESS
IN ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY: Role of
Governor in terms of the Rules - Held: These Rules are ji-amed by
Legislative Assembly in exercise of powers conferr:!d under Art.208
- Even these Rules give the Governor of Arunachal Pradesh limited
discretionary powers but more particularly so in the matter of
summoning the Legislative Assembly - Constitution of India -
Art.208.(per Madan B. Lokur, J.)
ARUNACHAL PRADESH RULES OF EXECUTIVE BUSINESS,
1987: n:8, 14, 33 - Held: The Governor has no independent
o · discretion or authority to summon the Legislative Assembly -
Constitution of India - Art.166. (per Madan B. Lokur, J.)
Allowing the appeals, the Court
HELD:
PER .JAGDISH SINGH
KHEHAR, .J.:
1.1. Undoubtedly, all executive actions of the Government of a
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State are expressed in the name of the Governor, under Article
166. That, however, does not per se add to the functions and
powers of the Governor. In the discharge of executive functions,
the Governor of a State has the power to grant pardons, reprieves,
respites or remissions of punishments or to suspend, remit or
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commute sentences (under Article 161). The Governor's power
under Article 161, is undisputedly exercised on the aid and advice
of the Chief Minister and his Council of Ministers. The Governor
has power to frame rules for the convenient transaction of
executive business of the Government, under Article 166. The
instant responsibility is also discharged, on aid and advice. All in
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all, it is apparent, that the Governor is not assigned any significant
role in the executive functioning of the State. [Para 137] [172-CE]
1.2. The duties and responsibilities of the Governor in the
legislative functioning of a State are incorporated in Part VI
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Chapter Ill of the Constitution, which includes Articles 168 to
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
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AND OTHERS
212. Even though Article Hi8 postulates, that the legislature of
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a State would comprise of the Governor, yet the Governor is not
assigned any legislative responsibility in any House(s) of the State
Legislature, irrespective of whether it is the legislative process
relating to Ordinary Bills or Money Bills. Insofar as the legislative
process is concerned, the only function vested with the Governor · 8
is expressed through Article 200 which inter a/ia provides, that a
Bill passed by the State Legislature, is to be presented to the
Governor for his assent. And its ancillary provision, namely,
Article 201 wherein a Bill passed by the State Legislature and
presented to the Governor, may be reserved by the Governor
for consideration by the President. The only exception to the
non-participation of the Governor in legislative functions, is
postulated under Article 213 which apparently vests with the
Governor, some legislative power. The Governor under Article
213 can promulgate Ordinances, during the period when the
House(s) of the State Legislature, is/are not in session. This
function is exercised by the Governor, undisputedly, on the aid
and advice of the Council of Ministers with the Chief Minister as
the head. The Governor is also required to summon the House
or Houses of State Legislature, or to prorogue or dissolve them
under Article 17 4. Articles 178 to 187 deal with the officers of
the State Legislature, including the Speaker and the Deputy
Speaker, as well as, the secretariat of the State Legislature. These
Articles are on the subject of appointment and removal of the
Speaker and the Deputy Speaker of the Legislative Assembly, as
also, the Chairman and Deputy Chairman of the Legislative
Council, as well as, other ancillary matters. In neither of these
Articles, the Governor has any assigned role. The only
responsibility allocated to the Governor under Article 208, is of
making rules as to the procedure with respect to communications
between the two Houses of State Legislature. All in all, it is
apparent, that the Governor is not assigned any significant role
even in the legislative functioning of the State. [Para 137] [172E-H; 173-A-E)
2. The scope and extent of the discretionary power of the
Governor, is provided for through Article 163(1). Article 163(1)
provides for the principle of ministerial responsibility. The
Constituent Assembly debates, leave no room for any doubt, that
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the framers of the Constitution desi.red to embody the general
and basic principle, describing the extent and scope of the
discretionary power of the Governor, in sub-article (1) of Article
163, and not in sub-article (2) thereof. As regard the constitutional
role of the Governor, in paragraph 4.2.14 of the Justice M.M.
Punchhi Commission report, it was observed that in a very limited
field, the Governor may exercise certain functions in his
discretion, as provided in Article 163(1). The first part of Article
163(1) requires the Governor to act on the advice of his Council
of Ministers. There is, however, an exception in the latter part of
the clause in regard to matters where he is by or under the
Constitution required to function in his discretion. The expression
"required" signifies that the Governor can exercise his
discretionary powers only if there is a compelling necessity to do
so. The inferences drawn in the Justice M.M. Punchhi
Commission report are in consonance with the scheme of the
functions and powers assigned to the Governor, with reference
to the executive and legislative functioning of the State, and more
particularly with reference to the interpretation of Article 163.
Insofar as the exercise of discretionary powers vested with the
Governor is concerned, the same is limited to situations, wherein
a constitutional provision expressly so provides, that the
Governor should act in his own discretion. Additionally, a
Governor can exercise his functions in his own discretion, in
situations where an interpretation of the concerned constitutional
provision, could not be construed otherwise. The finality
expressed in Article 163(2) would apply to functions exercised
by the Governor in his own discretion, as are permissible within
the framework of Article 163(1), and additionally, in situations
where the clear intent underlying a constitutional provision, so
requires i.e., where the exercise of such power on the aid and
advice, would run contrary to the constitutional scheme, or would
be contradictorr in terms. [Paras 139, 140, 142) (174-E; 175-AB, E-G; 177-B-C; 178-A-B, DJ
Mahabir Prasad Sharma v. Prafulla Chandra Ghose
(1968) 72 C.W.N. 328; Pratapsinf( Raojirao Rane v.
Governor of Goa AIR 1999 (Born.) 53 - Not correct
law.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
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AND OTHERS
3.1. Interpretation of Section 174 - Power of summoning
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Assembly.
The draft Article 153 was renumbered as Article 174 of the
Constitution. The most significant feature of draft Article 153
was expressed in sub-article (3) thereof, wherein it was provided,
that the functions of the Governor with reference to sub-clauses
(a) and (c), namely, the power to summon and dissolve the House
or Houses of the State Legislature " ... shall be exercised by him
in his discretion." The words used in sub-article (3) of draft Article
153, were in consonance with the requirements postulated under
Article 163(1). Under Article 163(1), the Governor can exercise
only such functions in his own discretion which he is expressly
required, by or under the Constitution, to exercise in his
discretion. The manner in which draft Article 153(3) was originally
drawn, leave no room for any doubt, that the Governor would
definitely have had the discretion to summon or dissolve the
House or Houses of the State Legislature, without any aid or
advice. After the debate, draft Article 153 came to be renumbered
as Article 174. Article 174 reveals, that sub-article (3) contained
in draft Article 153 was omitted. The omission of sub-article (3)
of draft Article 153, is a matter of extreme significance, for a
purposeful confirmation of the correct intent underlying the
drafting of Article 174. The only legitimate and rightful inference,
that can be drawn in the final analysis is, that the framers of the
Constitution altered their original contemplation, and consciously
decided not to vest discretion with the Governor, in the matter
of summoning and dissolving the House, or Houses of the State
Legislature, by omitting sub-article(3), which authorized the
Governor to summon or dissolve, the House or Houses of
Legislature at his own, by engaging the words " .. shall be exercised
by him in his discretion ... ". [Para 149) [180-H; 181-C-G]
3.2. A Governor under the Constitution, is not an elected
representative. A Governor is appointed by a warrant issued
under the hand and seal of the President under Article 155, and
his term of office enures under Article 156, during the pleasure
of the President. A Governor is an executive nominee, and his
appointment flows from the aid and advice tendered by the
Council of Ministers with the Prime Minister as the head, to the
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President. The President, on receipt of the above advice, appoints
the Governor. Likewise, the tenure of the Governor rightfully
subsists, till it is acceptable to the Council of Ministers with the
Prime Minister as its head, as the Governor under Article 156
holds office, during the pleasure of the President. Such a nominee,
cannot have an overriding authority, over the representatives of
the people, who constitute the House or Houses of the State
Legislature (on being duly elected from their respective
constituencies) and/or even the executive Government
functioning under the Council of Ministers with the Chief
Minister as the head.
[Para 150) [181-H; 182-B-C)
3.3. In a situation where the Governor has reasons to
believe, that the Chief Minister and his Council of Ministers have
lost the confidence of the House, it is open to the Governor, to
require the Chief Minister and his Council of Ministers to prove
their majority in the House, by a floor test. Only in a situation,
where the Government in power on the holding of such floor test
is seen to have lost the confidence of the majority, it would be
open to the Governor to exercise the powers vested with him
under Article 17 4 at his own, and without any aid and advice.
Since in the instant case, the Governor never called for a floor
test, it is reasonable to infer, that the Governor did not ever
entertain any doubt, that the Chief Minister and his Council of
Ministers were still enjoying the confidence of the majority, in
the House. Nor was a motion of no confidence moved against the
Government. In the above situation, the Governor jnst could
not have summoned the House, by his order dated 9.12.2015, in
his own discretion, by preponing the 6th session of the Legislative
Assembly from 14.1.2016 to 16.12.2015. This, for the simple
reason, that the Governor neither had the jurisdiction nor the
power to do so, without the aid and advice of the Council of
Ministers with the Chief Minister as the head. [Paras 153, 154)
[185-F-H; 186-A-BJ
4.1. Article 175 of the Constitution: Section 63 of the
Government of India Act, 1935 was a precursor to Article 175.
A perusal of Section 63 of the Act of 1935, reveals that sub-section
(2) thereof had the words "in his discretion", incorporated therein,
with reference to the scope and am bit of the Governor's
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
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messages, to the Legislature. It is therefore apparent, that under
the Act of 1935, the discretion to send messages to the
Legislature, was clearly bestowed on the Governor, as he may
consider appropriate, in his own wisdom. Article 175 has no such
or similar expression. It is apparent, therefore, that the framers
of the Constitution did not intend to follow the regimen, which
was prevalent under Section 63 of the Act of 1935. It must have
been for the above reason, that the Constituent Assembly framed
Article 175, by excluding and omitting the discretion which was
vested with the Governor, in the matter of sending messages,
under the Government of India Act, 1935. [Para 159) [189-A-D]
4.2. The Governor's messages with reference to matters
(as were expressed in the message dated 9.12.2015), do not flow
from the functions assigned to him. The Governor cannot likewise
interfere in the activities of the Assembly, for the reason that the
Chief Minister, or the entire Council of Ministers, or an individual
Minister in the Cabinet, or for that matter even an individual
MLA, are not functioning in consonance with the provisions of
the Constitution, or in the best interest of the State. The State
Legislature, does not function under the Governor. In sum and
substance, the Governor just cannot act as the Ombudsman of
the State Legislature. The messages addressed by the Governor
to the Assembly, must abide by the mandate contained in Article
163(1), namely, that the same can only be addressed to the State
Legislature, on the aid and advice of the Council of Ministers
with the Chief Minister as the head. The message of the Governor
dated 9.12.2015, was therefore beyond the constitutional authority
vested with the Governor. (Paras 161, 162) (190-G-H; 191-A-CJ
5. The appointment of the Governor is made under Article
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155, not by way of an electoral process, but by a warrant issued
under the hand and seal of the President. The constitutional
Governor, is to- hold his office under Article 156, during the
pleasure of the President. Since the President exercises his
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functions on the aid and advice of the Prime Minister and his
Council of Ministers, the tenure of the office of the Governor
has also to coincide with the aid and advice of the Prime Minister
and his Council of Ministers. Insofar as the issue of the removal
of the Speaker is concerned, the same would depend on the result
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of the vote, on the notice of resolution for his removal. If the
majority votes in favour of the motion, the resolution is liable to
be adopted. Failing which, it is liable to be rejected. In the above
situation, it is apparent, that neither the Chief Minister, nor the
Council of Ministers, has any determinative role on the subject
of removal of the Speaker (or the Deputy Speaker). Their
individual participation is limited to their individual vote, either
in favour or against the motion for the removal of the Speaker
(or the Deputy Speaker). Even the above bit, is not available to
the Governor. The Governor has no role whatsoever in the
removal of the Speaker (or the Deputy Speaker). Therefore, no
role direct or indirect can be assumed by the Governor, under
Article 179(c). The assumption of such a role, and the fulfillment
thereof by addressing a message to the Assembly under Article
175, can only be ascribed as an ingenuity, without any constitutional
sanction. In the above view of the matter, the impugned message
of the Governor dated 9.12.2015, cannot be endorsed as
constitutionally acceptable. [Paras 166, 167) (193-A-B, C-F]
6.1. Paragraph 6 of the Tenth Schedule inter alia postulates,
that if a question arises, whether a member of the Legislative
Assembly has become subject to disqualification, the adjudicatory
role for determining the above question, will fall within the
exclusive authority of the Speaker; and in case of a member of
the Legislative Council, solely on the shoulders of the Chairman.
Sub-paragraph (2) of Paragraph 6, by a constitutional fiction, adopts
all proceedings carried out by the Speaker or the Chairman under
the Tenth Schedule, as proceedings of the State Legislature. It
is apparent from the provisions of the Tenth Schedule, that no
role whatsoever has been assigned to the Governor, in the matter
of removal of a member of the Assembly/Council. In the above
view of the matter, even where a petition is filed for
disqualification of one or more MLAs under the Tenth Schedule,
the Governor's direct or indirect participation in the same, is
impermissible. Besides the fact that the Governor has no role
whatsoever in the proceedings carried out under the Tenth
Schedule, he cannot have any interest in the outcome of the
disqualification proceedings under the Tenth Schedule. The
Governor can, therefore, never be concerned with the proceedings
under the Tenth Schedule, one way or the other. Accordingly,
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
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any exercise of authority by the Governor based on pending
proceedings against members of the Legislative Assembly, under
the Tenth Schedule, are clearly beyond his constitutional authority.
[Paras 170, 171] [195-B-F.]
6.2. When the position of a Speaker is under challenge,
through a notice of resolution for his removal, it would "seem"
just and appropriate, that the Speaker first demonstrates his right
to continue as such, by winning support of the majority in the
State Legislature. The action of the Speaker in continuing, with
one or more disqualification petitions under the Tenth Schedule,
whilst a notice of resolution for his own removal, from the office
of Speaker is pending, would "appear" to be unfair. If a Speaker
truly and rightfully enjoys support of the majority of the MLAs,
there would be no difficulty whatsoever, to demonstrate the
confidence which the members of the State Legislature, repose
in him. The office of Speaker, with which the Constitution vests
the authority to deal with disqualification petitions against MLAs,
must surely be a Speaker who enjoys confidence of the Assembly.
Article 179(c) provides, that a Speaker (or Deputy Speaker), "may
be removed from his office by a resolution of the Assembly passed
by a majority of all the then members of the Assembly". A notice
of resolution for the removal of the Speaker (or the Deputy
Speaker) of the Assembly, would therefore, have to be passed by
a majority "of all the then members of the Assembly". The words
"all the then members" were consciously added to Article 179(c),
and their substitution was not accepted by the Constituent
Assembly. The words "passed by a majority of all the then
members of the Assembly", would prohibit the Speaker from
going ahead with the disqualification proceedings under the Tenth
Schedule, as the same would negate the effect of the words "all
the then members", after the disqualification of one or more MLAs
from the House. The words "all the then members", demonstrate
an expression of definiteness. Any change in the strength and
composition of the Assembly, by disqualifying sitting MLAs, for
the period during which the notice of resolution for the removal
of the Speaker (or the Deputy Speaker) is pending, would conflict
with the express mandate of Article 179(c), requiring all "the
then members" to determine the right of the Speaker to continue.
[Para 173, 175] (196-F-H; 198-F-G; 199-A-C]
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6.3. The Tenth Schedule was inserted in the Constitution,
by the Constitution (Seventy-third Amendment) Act, 1992, with
effect from 24.4.1993. The purpose sought to be achieved
through the Tenth Schedule, is clear and unambiguous. The same
is unrelated to, and dist!nct from, the purpose sought to be
achieved through Article 179(c). Neither of the above provisions,
can be seen as conflicting with the other. Both, must therefore
freely operate, within their individual constitutional space. Each
of them will have to be interpreted, in a manner as would serve
the object sought to be achieved, without treading into the
constitutional expanse of the other. The interpretation would
have to be such, as would maintain constitutional purpose and
harmony. [Para 176) [199-D-E)
6.4. If a Speaker survives the vote, on a motion for his
removal from the office of Speaker, he would still be able to
adjudicate upon the disqualification petitions filed under the Tenth
Schedule. The process of judicial review, cannot alter the above
position. But, if a disqualification petition is accepted by the
Speaker, the disqualified MLAs will have no right to participate
in the motion moved against the Speaker under Article 179(c). A
disqualified MLA, can assail the order of his disqualification, by
way of judicial review. If he succeeds, and his disqualification
from the House is set aside, such a disqualified MLA, would be
deprived of the opportunity to participate in the motion against
the Speaker, under Article 179(c). In this situation, the process
of judicial review, can also alter the position, if a disqualification
order passed by the Speaker, is set aside by a Court of competent
jurisdiction. In the event of an MLA having been disqualified by
the Speaker, the notice of resolution for the removal of the
Speake1; would surely be dealt with, and will be disposed of, during
the period when the concerned MLA stood disqualified.
Alternatively, if an MLA has not been disqualified when the
motion for the removal of the Speaker is taken up, he would have
the right to vote on the motion pertaining to the removal of the
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certainly be considered and decided, by the Speaker. It is
apparent, that the difficulty arises only, if the disqualification
petition is taken up first, and the motion for the removal of the
Speaker is taken up thereafter. The possibility ofa disqualification
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER
AND OTHERS
petition being decided on political considerations, rather than on
merits, cannot be ignored. In fact, that is a real possibility. The
constitutional purpose and constitutional harmony would be
·maintained and preserved, if a Speaker refrains from adjudication
of a petition for disqualification under the Tenth Schedule, whilst
his own position, as Speaker, is under challenge. This would
also, allow the two provisions (Article 179(c), and the Tenth
Schedule) to operate in their individual constitutional space,
without encroaching on the other. For the reasons recorded, it
would be constitutionally impermissible for a Speaker to adjudicate
upon disqualification petitions under the Tenth Schedule, while a
notice of resolution for his own removal from the office of Speaker,
is pending. [Para 177, 178] [199-F-H; 200-A-D, G-H; 201-A)
7.1. It is not within the realm of the Governor to embroil
himself in any political thicket. The Governor must remain aloof
from any disagreement, discord, disharmony, discontent or
dissension, within individual political parties. The activities within
a political party, confirming turbulence, or unrest within its ranks,
are beyond the concern of the Governor. The action of the
Governor, in bringing these factual position to the notice of the
President, in his monthly communications, may well have been
justified for drawing the President's attention to the political
scenario of the State. But, it is clearly beyond the scope of the
Governor's authority, to engage through his constitutional
position, and exercise his constitutional authority, to resolve the
same.
It is open to the Governor to take into consideration,
views of a breakaway group.