On May 12, 2015, JP Rajkhowa was sworn-in as governor of Arunachal Pradesh. A few months later, Congress Chief Minister Nabam Tuki faced dissidence as 21 MLAs from his party rebelled against him. Amidst the turmoil, the governor on December 9 ordered an assembly session on December 16 to discuss an impeachment motion against Speaker Nabam Rebia.
The Assembly premises were sealed with the connivance of Chief Minister Tuki and Speaker Rebia, who happen to be cousins. The session was conducted in an Itanagar community hall and presided over by the deputy speaker. The majority of the 32 members present (including the 21 Congress rebels) voted in favour of removing Rebia. On January 26, 2016, a day anointed by the founding fathers of the Republic to celebrate the Constitution of India, the President accepted the Union Cabinet’s recommendation to issue a proclamation under Article 356 to impose President’s rule in the state.
It’s yet another conflict between the BJP and the Congress. Once again this contest for supremacy will officiated over and decided by the Supreme Court of India. On Monday, hearing a clutch of petitions about the wranglings in Arunachal Pradesh, the Supreme Court withdrew its notice asking Rajkhowa to join the proceedings. But it clarified that this would not preclude the governor from presenting his views to the bench should he feel the need to.
Objective Material
Ironically, it is mainly non-Congress governments that have been at the wrong end of the stick over the years when it comes to the imposition of President’s rule. Under Article 356, the President should be satisfied either on the basis of a report from the governor of the state or otherwise that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.
In SR Bommai v. Union of India, relating to a dispute in Karnataka, the Supreme Court stated in no uncertain terms in 1994 that the existence of “objective material” showing that the government of the state cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issues the proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question.
The key question that needs to be answered therefore is whether the proclamation was issued by the President on the basis of objective material. If media reports are to be believed, the governor submitted six reports to the President on the deteriorating situation in Arunachal Pradesh, thereby satisfying one limb of the test laid down in Bommai, namely the existence of material. Nevertheless, as the SC clarified in Bommai:
“…the provisions require that the material before the President must be sufficient to indicate that unless a Proclamation is issued, it is not possible to carry on the affairs of the State as per the provisions of the Constitution… Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant.”
Thus, the next issue that needs to be addressed is the content of the material placed before the President.
Constitutionally ordained forum
It would appear that the governor’s principal submission is that Chief Minister Tuki is at the helm of a minority government following the so-called rebellion of 21 of his party MLAs. The facts were somewhat similar in Bommai, where the governor recommended President’s rule after receiving 19 letters, from the ruling party Janata Dal’s legislators and alliance partners, withdrawing their support.
Subsequently, seven of the 19 legislators wrote to the governor stating that they in fact supported Chief Minister Bommai, but the governor nevertheless recommended President’s rule as he was of the opinion that these letters were written under duress and horse-trading was rampant between Karnataka’s major political parties. The Supreme Court was highly critical of the Governor’s actions, stating that:
“…it is not known from where the Governor got the information that there was horse-trading going on between the legislators. Even assuming that it was so, the correct and the proper course for him to adopt was to await the test on the floor of the House, which test the Chief Minister had willingly undertaken to go through on any day that the Governor chose.”
It is here that the waters get muddied, as it would appear that Tuki did not want to prove his majority on the floor of the Arunachal Pradesh state assembly under any circumstances, as he would face certain defeat. Dissent against Tuki was brewing well before Governor Rajkhowa’s arrival, with the breakaway faction of Congress MLAs led by his rival for the chief minister’s chair, Kalikho Pul. Pul made his intentions clear on the day of the proclamation:
“This is a fight within the state Congress…My colleagues and I are still very much in the Congress. We are ready to negotiate with the high command on removing Tuki from the leadership. But if our demands are still overlooked, we will form another Congress government with outside support.”
In Bommai, the Supreme Court was at pains to stress that in all cases where the support to the ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the ministry is holding the test on the floor of the House, which was the constitutionally ordained forum. It did however acknowledge that on some rare occasions, the floor-test may be impossible. The court said that it should be obligatory on the governor in such circumstances, to state in writing, the reasons for not holding the floor-test.
The governor makes his case
The Arunachal Pradesh governor seems to have done just that in the present case, pegging his recommendation for President’s rule on the fact that Tuki’s “minority government”, in conjunction with the speaker, was preventing the floor test from taking place in the Assembly premises. While no letters withdrawing support seem to have been sent, Pul and the rebels have openly stated that they no longer support the Tuki government. Nevertheless, the Sarkaria Report on Centre-State relations, endorsed by the Supreme Court in Bommai, clearly states that resorting to Article 356 “to sort out internal differences or intra-party problems of the ruling party would not be constitutionally correct”.
The governor however has not restricted himself to the floor test issue, and has gone on to state that there is a complete breakdown of law and order in Arunachal Pradesh. The indicator of such constitutional breakdown according to the Governor is the fact that letters to the chief minister on matters of public importance concerning the administration of the state were mostly not responded to, in violation of Article 167 (b) of the Constitution.
Furthermore, if the Supreme Court finds that the session in the Itanagar community hall on December 16 was invalid, more than six months would have elapsed between sittings of the legislative assembly, which would be a clear violation of Article 174.
The governor also seems to have drawn the President’s attention to the fact that the Raj Bhavan premises were under siege by Tuki and Rebia supporters, with the district administration and police not enforcing the prohibitory orders or making even a single arrest. Most worryingly, the Governor seems to have been publicly insulted and threatened, with a video showing a minister in the Tuki government advancing towards the governor in a menacing manner, leading to an intervention by the governor’s bodyguards.
Dark days ahead
While it would be convenient to label this as yet another instance of misuse of high constitutional office by the party in power at the Centre, it is fair to say that governance crisis in Arunachal Pradesh is very real. There seems to be plenty of “objective material”, in the form of statements by the rebel MLAs complemented by the reports of the Tuki government’s actions against the governor and the misuse of the Assembly premises.
The governor, a former bureaucrat, at least ostensibly, seems to have no ties with the BJP or the wider Hindu Parivar. President Mukherjee’s political affiliations are well-known and he is not one to kowtow to the BJP-led government, having recently returned a Gujarat anti-terror Bill to the Union Home Ministry seeking clarifications. In any event, all of this irrelevant, as the Supreme Court has clearly held it will not question the President’s decision to issue a proclamation as long as it has been taken on the basis of objective material, which seems to have happened in the present case.
That being said, even if the Supreme Court holds that the material was not objective and the proclamation be set aside, it will most likely order that a session of the Assembly be convened at the earliest and Tuki prove his majority on the floor of the house. With Tuki certain to be defeated by the rebels, the state would once again be thrown into turmoil. It can be safely stated that no matter what decision the Supreme Court reaches on the constitutionality of the proclamation, Arunachal Pradesh – which means “land of the rising sun” – faces stormy weather.
Abhishek Sudhir is Dean, IFIM Law College, Bangalore.
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