Holding

The Governor cannot exercise powers under Article 174 without the aid and advice of the Council of Ministers, and has no role in the removal of the Speaker or in disqualification proceedings under the Tenth Schedule; the Deputy Speaker has no authority to set aside the Speaker's disqualification order.

Summary

The case arose from political turmoil in Arunachal Pradesh where the Governor, without the aid and advice of the Council of Ministers, preponed the 6th session of the Legislative Assembly from 14 January 2016 to 16 December 2015 and issued a message directing the manner of proceedings, including the removal of the Speaker. The Speaker had disqualified 14 MLAs under the Tenth Schedule, and the Deputy Speaker set aside that order. The Supreme Court held that the Governor's discretionary powers under Article 163 are limited to situations expressly required by the Constitution, and that summoning the Assembly under Article 174 must be on the aid and advice of the Council of Ministers. The Governor has no role in the removal of the Speaker under Article 179 or in disqualification proceedings under the Tenth Schedule. The Court quashed the Governor's order and message, set aside all steps taken pursuant to them, and restored the status quo ante. The Deputy Speaker's order setting aside the disqualification was also held to be without jurisdiction.

Issues considered

Whether the Governor can exercise powers under Article 174 without the aid and advice of the Council of Ministers?
Whether the Governor's message under Article 175 directing the conduct of Assembly proceedings is constitutionally valid?
Whether the Governor has any role in the removal of the Speaker under Article 179?
Whether the Governor can interfere with disqualification proceedings under the Tenth Schedule?
Whether the Deputy Speaker can set aside an order of disqualification passed by the Speaker under the Tenth Schedule?

Legislation cited

Arunachal Pradesh Rules of Executive Business, 1987s. 14, s. 33, s. 8
Constitution of Indias. 155, s. 156, s. 163, s. 166, s. 168, s. 174, s. 175, s. 179, s. 181, s. 200, s. 208, s. 213, s. 356, s. 371-H, s. Tenth Schedule
Government of India Act, 1935s. 50, s. 62, s. 63
India (Provisional Constitution) Order, 1947s. 3(2)
Rules of Procedure and Conduct of Business in Arunachal Pradesh Legislative Assemblys. 151, s. 152, s. 153, s. 154, s. 203, s. 3, s. 3A, s. 7, s. 8B

Subjects

Constitution of IndiaGovernor's powersArticle 163Article 174Article 175Article 179Tenth ScheduleSpeaker's removalDisqualification of MLAsJudicial reviewParliamentary democracyResponsible governmentFloor testSummoning of Legislative AssemblyDeputy Speaker's powers

Judgment

f2016] 6 S.C.R. 1

NABAM REBIA, AND BAMANG FELIX A
v.
DEPUTY SPEAKER AND OTHERS
(Civil Appeal Nos. 6203-6204of2016)
JULY 13,2016 8
[JAGDISH SINGH KHEHAR, DIPAK MISRA,
MADAN B. LOKUR, PINAKI CHANDRA GHOSE
AND N. V. RAMANA, JJ.]
CONSTITUTION OF IND/A:
c
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
D
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 E
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 p·
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 G
- The' constitutional position declared therein, With reference to
Af't.163(2), is accordingly set aside.
Arts.163, 174, 179 - Removal of the Speaker (or the Deputy
Speaker) under Art.179 - Role of Governor:._ Held: Governor has
H
2 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 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
B
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
c 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
D 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
E 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
F 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
G 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 6 h session
1

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
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 3·
AND OTHERS

Legislative Assembly. pursuant to the Governors order and message A
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. B
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 c
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 D
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 E
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 F
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 G
- 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 H
4 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 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
B
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
c 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.)
D Art.174 - Power of Governor vested under Art.174 - 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
E 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
F 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
G 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
H was a motion of no confidence moved against the Government - In
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 5
AND OTHERS

the above situation, the Governor just could not have summoned A
the House, by his order dated 9.12.20 I 5, in his own discretion, by
preponing the 61" 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 8
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 c
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/ D
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 E
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 F
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), G
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 H
6 SUPREME COURT REPORTS [2016) 6 S.C.R.

A - 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
B
then members" gain importance. (per Dipak Misra, J.)
Art.181 - Nature ofparticipation of Speaker when the question
of his removal arises - Discussed. (per Dipak Misra, J.)
Office of Speaker - Held: Speaker has duty to see that
C 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
D 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
E 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.)
F 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 ofthe Assembly,·
under Paragraph 6 of the Tenth Schedule - Whether Speakers
actions fall within the framework of the Constitution, or otherwise,
G does not fall within the realm of consideration of the Governor -
The remedy for any wrong doing under the Tenth Schedule, lies by
way ofjudicial review - Neither the provisions of the Constitution
nor the 'Conduct of Business Rules' assign any such role to the
Governor - Judicial review.
H Tenth Schedule - Power of Governor to interfere with the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 7
AND OTHERS

functions of the Speaker - Held: It does not lie ·within the domain A
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.
8
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
c
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 D
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 E
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. J79(c) - Both the
provisions of the Constitution are meant to sub-serve the purpose
of sustenance of democracy which is basic feature of the F
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 G
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 H
8 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Speaker and he could certainly not set aside the order passed against
him and in respect of which he would be beneficiary.
INTERPRETATION OF STATUTES: Constitution of India -
Guidelines for understanding the text, context, the words and the
purpose of a constitutional provision - Discussed.
B 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
c 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
E 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
F 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
G all, it is apparent, that the Governor is not assigned any significant
role in the executive functioning of the State. [Para 137] [172-C-
E]
1.2. The duties and responsibilities of the Governor in the
legislative functioning of a State are incorporated in Part VI
H Chapter Ill of the Constitution, which includes Articles 168 to
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 9
AND OTHERS

212. Even though Article Hi8 postulates, that the legislature of A
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 c
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
D
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 E
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
F
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] [172- G
E-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 H
10 SUPREME COURT REPORTS [20 l 6] 6 S.C.R.

A 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
B
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
c 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
D
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
E 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
F
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-A-
G B, 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.
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER II
AND OTHERS

3.1. Interpretation of Section 174 - Power of summoning A
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 B
(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
c
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 D
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, E
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 F
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 G
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
H
12 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 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
B
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)
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,
D 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
E 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
F 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
G
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
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 13
AND OTHERS

messages, to the Legislature. It is therefore apparent, that under A
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
B
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 c
(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 D
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 E
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 F
5. The appointment of the Governor is made under Article
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 G
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
H
14 SUPREME COURT REPORTS (2016] 6 S.C.R.

A 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
B
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
c 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
D
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
E 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
F 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
G 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
H under the Tenth Schedule, one way or the other. Accordingly,
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 15
AND OTHERS

any exercise of authority by the Governor based on pending A
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" B
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
c
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, D
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 E
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 F
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 G
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] H
16 SUPREME COURT REPORTS [20 I 6] 6 S.C.R.

A 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,
B
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
c 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
D 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
E 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
F 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
G the right to vote on the motion pertaining to the removal of the
0
Speaker, whereafter, the petition for his own disqualification would
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
H Speaker is taken up thereafter. The possibility ofa disqualification
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 17
AND OTHERS

petition being decided on political considerations, rather than on A
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
B
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, c
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 D
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 E
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. Under Paragraph 4 of the Tenth
Schedule, legitimacy is bestowed on a breakaway group which F
comprises of not less than two thirds of the members of the
concerned legislature party. In the present case, the breakaway
group belonging to the ruling INC comprised of 21 members,
whereas the INC had 47 MLAs in the prevailing 60-member
Legislative Assembly. 21 MLAs belonging to the INC did not
constitute a legitimate and recognizable breakaway group. The G
Governor could not in support of the protests and assertions of
an invalid breakaway group, adopt a constitutional course,
recourse whereof could be taken only in case of a constitutional
crisis. As for instance, when the Government is seen to have
lost the confidence of the House. It has never been the position H
18 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of the Governor, that the Chief Minister had lost the confidence
of the House. Nor, that the INC could not sustain its majority in
the Assembly. Had that been the position, the Governor would
have called for a floor test. Admittedly, the Governor never called
for a floor test, nor did he ever require the Chief Minister to
establish his majority in the House. The Governor's actions,
B
based on feuds and wrangles of a breakaway group, which is not
recognized under the Tenth Schedule, cannot be constitutionally
condescended. [Paras 191 and 192] [211-A-B, D, E-H; 212-A]
7.2. There is no justification for a Governor to be disturbed
about proceedings in connection with the disqualification ofMLAs
c under the Tenth Schedule. Because, the Governor has no role
therein. Even the Chief Minister and his Council of Ministers,
have no concern with the disqualifkation proceedings
contemplated under the Tenth Schedule. Therefore, the legitimacy
or illegitimacy thereof, is beyond consideration of the Governor.
D That being the constitutional position, there can be no justification
in the Governor initiating action, based on proceedings
commenced against MLAs, under the Tenth Schedule. Any action
taken by the Governor, based on the proceedings being carried
on under the Tenth Schedule, would be a constitutional
impropriety. It is open to individual MLAs, against whom
E disqualification proceedings are taken (or who have been
disqualified, and consequently have lost their membership of the
House), to seek judicial review thereof. [Para 195] [212-E-H]
Samsher Singh v. State of Punjab (1974) 2 SCC 831:
1975 (1) SCR 814; Sardari Lal v. Union of India (1971)
F 1 SCC 411; PU Myllai Hlychho v. State of Mizoram
(2005) 2 sec 92: 2005 (1) SCR 279; State of
Meghalaya v. KA Brhyien Kurkalang (1972) 1 SCC
148; Bhuri Nath v. State of Jammu & Kashmir (1997) 2
SCC 745: 1997 (1) SCR 138; Samatha v. State of A.P.
G (1997) 8 sec 191: 1997 (2) Suppl. SCR 305; Dr.
Kashinath G Jalmi v. The Speaker (1993) 2 SCC 703:.
1993 (2) SCR 820; B.P. Singhal v. Union of India
(2010) 6 SCC 331; S.R. Bommai v. Union of India (1994)
3 SCC 1; Union of India v. Valluri Basavaiah
Chowdhary (1979) 3 SCC 324: 1979 (3) SCR 802;
H K.A. Mathialagan v. P. Srinivasan AIR 1973 (Madras)
NABAM REBlA, AND BAMANG FELIX v. DEPUTY SPEAKER 19
AND OTHERS

371; State of Punjab v. Satya Pal Dang AIR 1969 SC A
903: 1969 SCR 478; Nipamacha Singh v. Secretary,
Manipur Legislative Assembly AIR 2002 (Gauhati) 7;
Madhya Pradesh Special Police Establishment v. State
of Madhya Pradesh (2004) 8 SCC 788: 2004 (5) Suppl.
SCR 1020; State of Gujarat v. Justice R.A. Mehta (2013)
B
3 SCC 1: 2013 (1) SCR 1; Kesavananda Bharati v.
State of Kera/a (1973) 4 SCC 25; State of Maharashtra
v. Ramdas Shrinivas Nayak (1982) 2 SCC 463;
Rajendra Singh Verma v. Lt. Governor (NCT of Delhi)
(2011) 10 sec 1 - referred to.
M.N Kaul and S.L. Shakdher - "Practice and Procedure c
of Parliament", (5th Edition), published by the Lok
Sabha Secretariat - referred, to.
PER DIPAK MISRA, J.: (SUPPLEMENTING)
HELD: 1. Office of the Speaker in our history had its origin D
in 1921 when the Central Legislative Assembly was constituted
under the Montague-Chelmsford reforms. At that time, office of
the Speaker did not enjoy much importance. But, a significant
one, after the Constitution came into force, as is evident from
the constitutional scheme, the Speaker enjoys high constitutional
status and the Constitution reposes immense faith in him. For E
this reason alone, the Speaker is expected to have a sense of
elevated independence, impeccable objectivity and irreproachable
fairness, and above all absolute impartiality. This expectation is
the constitutional warrant; not a fond hope and expectation of
any individual or group. The Speaker has the duty to see that F
business of the House is carried out in a decorous and disciplined
manner. This functioning requires him to have unimpeachable
faith in the intrinsic marrows of the Constitution, constitutionalism
and, "Rule of Law". The faith, should be a visible and apparent
one. (Paras 9, 10] [218-B-E]
G
2. Article 179(a) postulates that a Speaker or a Deputy
Speaker of the Assembly shall vacate his office if he ceases to be
a member of the Assembly. Article 179(b) deals with resignation
from the office. In the case at hand, neither clause (a) nor clause
(b) of Article 179 is attracted. In the obtaining fact situation,.the
controversy pertains singularly to the understanding of clause (c). H
20 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Article 179(c) lays focus on two aspects, namely, (i) resolution of
the Assembly, and (ii) the resolution to be passed by a majority of
all the then members of the Assembly. The first proviso
commands that no resolution for the purpose of clause (c) shall
be moved unless fourteen days; notice has been given of the
intention to move the resolution. The fourteen days' time as
B
mandated by the constitutional provision gives protection to the
Speaker. It has a salutary purpose. The Founding Fathers of the
Constitution had thought it appropriate that a resolution to be
moved for removal of the Speaker is a matter of grave
constitutional consequence and, therefore, the "intention to move
c the resolution", has to precede the act of moving of the resolution.
The Rules are framed under Article 208 of the Constitution for
regulating the procedure of a House of the Legislature of a State
and the conduct of its business and said procedures prescribe
the manner of expressing the intention to move the resolution.
While prescribing a resolution to be passed by the majority, the
D
framers of the Constitution have also provided for "all the then
members of the Assembly". It indicates the intention of the
Founding Fathers that "all the then members of the Assembly"
have to be regarded as to be the actual or real figure. [Paras 2,
13, 14) [213-H; 214-A; 220-A-E)
E 3.1. The fulcrum of the controversy is "disqualification".
Different disqualifications find mention under Article 191(1) of
the Constitution. These contingencies are quite different than
the situation enshrined under Article 191(2) which has been
inserted by the Constitution (Fifty-second Amendment) Act, 1985.
F The said sub-Article specifically refers to disqualification under
the Tenth Schedule. Article 189 provides for voting in Houses,
power of Houses to act notwithstanding vacancies and corum.
Sub-Article (1) of Article 189 stipulates that save as otherwise
provided in the Constitution, all questions at any sitting ofa House
of the legislature of a State shall be determined by a majority of
G votes of the members present and voting, other than the Speaker
or Chairman, or person acting as such. The said sub-Article also
provides that Speaker or Chairman or person acting as such shall
not vote in the first instance, but shall have and exercise a casting
vote in the case of an equality of votes. The said sub-Article,
H thus, clearly states about the majority of votes of the members
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 21
AND OTHERS

present and voting and secondly, it empowers the Speaker to A
exercise his power of voting in case of equality of votes. In
contradistinction to the same, Article 181 provides that Speaker
or the Deputy Speaker not to preside while resolution for his
1·emoval from office is under consideration and he is entitled to
vote in the first instance on such resolution but not in the case of
B
an equality of votes. Under the Constitution, the Speaker is
entitled to take part in the proceedings and speak. Therefore,
he is in a position to contest. Appreciating the scheme of the
Constitution and especially keeping in view the language
employed in the first proviso to Article 179(c) it is quite clear
that it is the constitutional design that the Speaker should not do c
any act in furtherance of his interest till the resolution is moved.
[Paras 15, 17, 18] [220-F-G; 223-A-G]
3.2. Regard being had to the language employed in the
Article 179 (c) of the Constitution and the role ascribed to the
Speaker under the Tenth Schedule, it is necessary that the D
Speaker as a tribunal has to have complete detachment and
perceivable impartiality. When there is an expression of intention
to move the resolution to remove him, it is requisite that he
should stand the test and then proceed. That is the intendment
of Article 179(c) and the said interpretation serves the litmus
test of sustained democracy founded on Rule of Law; and the E
founding fathers had so intended and the constitutional value,
trust and morality unequivocally so suggest. It would be an
anathema to the concept of constitutional adjudication, if the
Speaker is allowed to initiate proceeding under the Tenth
Schedule of the Constitution after intention to remove him from F
his office is moved. The fourteen days period being mandatory,
the words "all the then members" gain more significance. The
Constitution has confidence in the Speaker. Simultaneously, the
command is to have the confidence of the majority of the "actual
or real figure". This understanding is gatherable from the
express provisions of the Constitution and it clearly brings in G
harmony between "constitutional confidence" or trust and the
"constitutional control". [Para 21] [225-E-H; 226-A]
State of Karnataka v. Union of India and another (1977)
4 SCC 608: 1978 (2) SCR 1; S.R Chaudhuri v. State
of Punjab and others (2001) 7 SCC 126: 2001 (1) H
22 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Suppl. SCR 621; M Nagaraj and others l~ Union of
India and others (2006) 8 SCC 212: 2006 (7) Suppl.
SCR 336; Kihota Hollohon v. Zachilhu and others
(1992) 1 SCC 309; Manoj Narztla v. Union of India
(2014) 9 SCC 1: 2014 (9) SCR 965 - relied on.
B PER MADAN B. LOKUR, J.: (SUPPLEMENTING)
HELD: 1.1. Article 163 of the Constitutiou traces its origins
first to Section 50 of the Government of India Act, 1935 and then
to Article 143 in the draft Constitution. Two important
expressions find mention in Section 50 of the Government of
c India Act, 1935 namely, "in his discretion" and "his individual
judgment". These expressions are noticed in several Sections
of the Government of India Act, 1935 and came up for discussion
when Section 9 of the Government of India Act, 1935 (relating to
the Council of Ministers) was discussed in the House of Commons
on 281h February, 1935. In the debate, the view expressed by one
D of the Members of Parliament was that the Governor-General
acts "in his discretion" when he is not obliged to consult the
Council of Ministers. On the other hand, he acts in "his individual
judgment" when he consults the Council of Ministers but does
not necessarily accept its advice. Thus it is clear that the
E expression "his individual judgment" obliges the Governor to
take the aid and advice of his Council of Ministers but he is not
bound by that advice and may act in his judgment. After
Independence, there was no intention to permit the Governor to
exercise any discretion or to take any decision in his individual
judgment. This is clear from the India (Provisional Constitution)
F Order, 1947 issued in exercise of powers conferred by Section
9(1)(c) of the Indian Independence Act, 1947. Paragraph 3(2) of
the India (Provisional Constitution) Order, 1947 explicitly deletes
the expressions "in his discretion", "acting in his discretion"
and "exercising his individual judgment" wherever they occur in
G the Government of India Act, 1935. The expression "his individual
judgment" did not find mention in Article 143 in the draft
Constitution. This is as clear an indication that the framers of our
Constitution did not intend that the Governor could disregard
the aid and advice of the Council of Ministers. [Paras 7, 8, 12, 13,
16] [227-H; 228-A, E-F; 229-A; 232-C-D, E-F; 234-D-E]
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 23
AND OTHERS

1.2. The sum and substance of the historical background A
leading to Article 163 of the Constitution, as enacted, is this: (i)
The Council of Ministers will aid and advise the Governor in the
exercise of his functions. This is the first part of Article 163 (1) of
the Constitution. The Governor then has two options - (a) To
reject the aid and advice of the Council of Ministers and act in
B
"his individual judgment". This. is an illusory and non-existent
option since the Constitution does not permit it. (b) To act on the
aid and advice of the Council of Ministers. By default this is the
only reai option available to him. (ii) If the exercise of function is
beyond the purview of the aid and advice of the Council of
Ministers but is by or under the Constitution, the Governor can c
act "in his discretion". Article 163(2) of the Constitution will have
reference only to the last part of Article 163(1) of the Constitution
and is not all-pervasive. If there is a break-down in
communications between the Council of Ministers and the
Governor (as imagined by Mr. Churchill), then the Governor will
D
not have the benefit of the aid and advice of the Council of
· Ministers. In that event, the Governor may "take the matter
into his own hands and act freely." The break-down of
communications was a possibility under the Government of India
Act, 1935 since it was "in the main undemocratic" and there could
be a break-down of communications between the representative E
of His Majesty and the Council of Ministers. However, if such a
situation were to arise today in independent India, namely, a
break-down of communications between the Governor of a State
and the Council of Ministers, it would be most unfortunate and
detrimental to our democracy. In the unlikely event of a complete
F
break-down of communications, the Preside~t can and must
intervene to bring in constitutional order. [Paras 20, 21] [238-F-
G; 239-A-C]
2. The historical background and the debates pertaining
to Article 174 (and Article 85) of the Constitution lead to the
conclusion that it is only the Governor who may summon the G
Legislative Assembly, but only on the advice of the Council of
Ministers and not suo moto. In other words, the G~>Vernor cannot
summon the Legislative Assembly "in his discretion". If the
Governor disregards the advice of the Council of Ministers the
pleasure of the President can be withdrawn since the Governor H
24 SUPREME COURT REPORTS [2016] 6 S.C.R.

A holds office during his pleasure. [Para 39] [247-F-G; 248-A-B]
3.1. The Justice Sarkaria Commission looked at Article
163(1) of the Constitution in two parts, namely, the Governor
exercising his discretion when required by the Constitution and
when required under the Constitution. The exercise of discretion
B conferred by the Constitution would relate to an express provision
of the Constitution (such as those relating to the Tribal Areas of
Assam) or by necessary implication; while the latter expression
would include the exercise of discretion from n11Ps and orders
made under the Constitution. Given this interpretation, according
to the Justice Sarkaria Commission, "The scope of discretionary
c powers has to be strictly construed, effectively dispelling the
apprehension, if any, that the area for the exercise of discretion
covers all or any of the functions to be exercised by the Governor
under the Constitution. In other words, Article 163 does not give
the Governor a general discretionary power to act against or
D without the advice of his Council of Ministers." The Justice
Sarkaria Commission studied the Constitution and placed the
functions of the Governor in four categories: i) The Governor
acting in his discretion; (ii) The Governor acting in his individual
judgment; (iii) The Governor acting in his discretion
independently of the Council of Ministers. (iv) The Governor
E acting in his discretion under the Constitution. (Paras 86, 87]
[265-C-G]
3.2. In March 2000, Justice Punchhi submitted a Report
on Centre-State Relations. The broad mandate of the Commission
was "to review the existing arrangements between the Union
F and States as per the Constitution of India in regard to powers,
functions and responsibilities in all spheres. The Justice Punchhi
Commission did not disagree with the Justice Sarkaria
Commission on any issue relating to the functions and duties of
the Governor. It must therefore be taken that the functions,
G duties and powers of the Governor by or under the Constitution
are "cabined, cribbed, confined". However, if"discretion" is given
a broad meaning as desired by the respondents and is given
greater weightage than "his individual judgment" then there
would be "saucy doubts and fears" of the arbitrary exercise of
discretion by the Governor as has happened in the present case,
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 25
AND OTHERS

and other cases. First and foremost, it is important to note that A
the rules of procedure framed by the Legislative Assembly for
regulating its procedure and the conduct of its business under
Article 208 of the Constitution do not need anybody's approval,
including that of the Governor of the State. The Rules of
Procedure and Conduct of Business in Arunachal Pradesh
B
Legislative Assembly ("the Rules") framed by the Legislative
Assembly of Arunachal Pradesh in exercise of powers conferred
by Article 208 of the Constitution carry forward the intention of
the Constituent Assembly as well as the decisions of this Court
to the effect that the Governot: is a constitutional or formal head
not only of the Executive but, in some respects, also of the c
Legislature. The Rules give the Governor of Arunachal Pradesh
limited discretionary powers, but more particularly so in the
matter of summoning the Legislative Assembly. Rule 3 and 3A
provides that the Governor can summon the Assembly only if
the Chief Minister (in consultation with the Speaker) so advises
D
him. There is no exception to this. However, Article 174 of the
Constitution would be violated if the Chief Minister does not so
advise the Governor to summon the Assembly for a period of six
months, or if the Governor does not summon the Assembly
despite the advice of the Chief Minister. As mentioned by Pandit
Jawaharlal Nehru when the First Amendment to the Constitution E
was discussed in Parliament, either the Chief Minister or the
Governor (as the case may be) would have to bear the
consequences of violating the Constitution. In matters pertaining
to the Assembly, the Governor of Arunachal Pradesh has been
given an additional 'discretionary power'. This is with regard to
F
the election of the Speaker of the Assembly. Rule 7(1) of the
Rules provides that when a new Assembly is constituted or there
is a vacancy in the office of the Speaker and the election of the
Speaker is necessary, the Governor shall fix a date for holding
the election. To this extent the Governor has a role to play in the
Assembly in his capacity as a constituent of the Legislature, as G
postulated by Article 168 of the Constitution. [Paras 100, 102,
106, 107, 109, 110) [269-E-F; 270-D-E; 271-C-F; 272-E-H; 273-
AJ
3.3. The Governor has yet another discretionary duty to
perform which is when the office of the Speaker as well as the H
26 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Deputy Speaker is vacant, even when the Assembly is not a new
Assembly. In that event the Governor has the discretionary duty
to appoint a member of the Assembly as a Speaker. This is
provided for in Article 180(1) of the Constitution as well as Rule
8B of the Rules. Though summoning the Legislative Assembly
might be an executive function of the Governor, that function can
B
be exercised by him only after such a proposal is seen by the
Chief Minister and sent to him. Reading this with the Rules of
Procedure and Conduct of Business in Arunachal Pradesh
Legislative Assembly, the Chief Ministt-r can make a proposal
to the Governor for summoning the Legislative Assembly only
c in consultation with the Speaker of the Legislative Assembly who
is, in a sense, the Master of the House. In other words, the
Governor has no independent discretion or authority to summon
the Legislative Assembly, in terms of the Rules of Procedure
and Conduct of Business in Arunachal Pradesh Legislative
Assembly framed under Article 208 of the Constitution or the
D
Arunachal Pradesh Rules of Executive Business, 1987 framed
under Article 166 of the Constitution to summon the Legislative
Assembly in his discretion. In case the Chief Minister fails in hfs
-duty to put forward a proposal before the Governor for summoning
the Legislative Assembly or if the Governor does not accept the
E proposal of the Chief Minister of Arunachal Pradesh for
summoning the Legislative Assembly, necessary consequences
will follow as mentioned in the debates in Parliament when the
first amendment to the Constitution was considered. [Paras 111,
121, 122) [273-C; 276-B-E]
F 4. Article 371-H of the Constitution provides for the
Governor exercising "his individual judgment" in the discharge
of his functions relating to law and order in Arunachal Pradesh.
Specifically, 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. Under Arti~le 163(1)
G of the Constitution, the Governor is bound by the advice of his
Council of Ministers. There are only three exceptions ["except
in so far as"] to this: (i) The Governor may, in the exercise of his
functions, act in his discretion as conferred by the Constitution;
(ii) The Governor may, in the exercise of his functions, act in his
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 27
AND OTHERS

discretion as conferred under the Constitution; and (iii) The A
Governor may, in the exercise of his functions, act in his individual
judgment in instances specified by the Constitution. [Paras 123,
124, 125] [276-G; 277-G]
5. Our Constitution expects all constitutional authorities
to act in harmony and there must be comity between them to 8
further the constitutional vision of democracy in the larger
interests of the nation. It must be appreciated that no one is
above the law and equally, no one is not answerable to the law
and the debate on the First Amendment to the Constitution
clearly indicates so. As is evident from our constitutional history,
there are three areas in which a Governor might function: Areas
c
in which he can act only on the aid and advice of the Council of
Ministers. This is in all areas of the executive functions of the
State Government [Article 166). Areas in which he can act in his
discretion by or under the Constitution and in which he does not
need to take the advice of the Council of Ministers [Article 163 D
- "except in so far as he is by or under this Constitution required
to exercise his functions or any of them in his discretion."] or,
areas in which he might take the advice of the Council of Ministers
but is not bound by it enabling him to act in his individual judgment
by or under the Constitution. Areas that have no concern with
the Constitution. For example, where he is acting eo nomine. A E
distinction needs to be drawn between the relationship of the
Governor vis-fl-vis the Executive and the relationship of the
Governor vis-fl-vis the Legislature. Article 163 deals with the
relationship of the first category and Article 174 (among others)
deals with the relationship of the second category. [Paras 136, F
137] [282-D-H; 283-A-C]
6. If the functions of the Governor were to be read as his
power, and an untrammeled one at that (in view of Article 163 of
the Constitution, as contended), then the Governor has the power
to literally summon the Assembly to meet "at such time and place G
as he thinks fit" that is in any city and at any place other than the
Legislative Assembly building and at any odd time. This is nothing
but arbitrary and surely, an arbitrary exercise of power is not
what our Constitution makers either contemplated in the hands
of the Governor or imagined its wielding by any constitutional
H
28 SUPREME COURT REPORTS [2016] 6 S.C .R.

A authority. 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 the Council of
Ministers. In the event that advice was not available and
responsible government was not possible, the Governor could
have resorted to the "breakdown provisions" and left it to the
B
President to break the impasse. The Governor had the advice of
the Council of Ministers but chose to ignore it; he assumed (well
before the advice was tendered) that the advice would be such
that he might not be bound by it; the Governor, despite being the
'first citizen' of the State, chose to take no steps to break the
c impasse caused by a collapse of communications between him
and the Chief Minister; finally, the Governor took no steps to
resort to the breakdown provisions and obtain impartial advice
from the President. Instead, the Governor acted in a manner
opposed to the rule of law and, therefore, arbitrarily and in a
manner that certainly surprises "a sense of juridical propriety".
D [Para 139, 146] [284-B-C; 287-E-H]
7. The Governor had yet another option available to him -
to invoke what is referred in Canada as the "confidence
convention" in which "the Prime Minister and the Cabinet are
responsible to, or must answer to, the House of Commons for
E their actions and must enjoy the support and the confidence of a
majority of the Members of that Chamber to remain in office." If
the Governor had any doubt about the continuance of a responsible
government as a result of the shenanigans that were going on in
Arunachal Pradesh at the relevant time, he could very well have
F required the Chief Minister to prove that he had the confidence
of the Assembly, but he chose not to exercise this option also. In
other words, all possible constitutional options were unilaterally
discarded and disregarded by the Governor in summoning the
Assembly to meet on l6 1h December, 2015 and cancelling the
session fixed for 141h January, 2016. The actions of the Governor
G were certainly not in the language of the law or the spirit of
parliamentary democracy and responsible government. In these
circumstances, it must be held that the Governor's unilateral act
of summoning the Assembly is unconstitutional. [Para 147] [288-
A-D]
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 29
AND OTHERS

8. Relations between the Governor, the Executive and the A
Legislature
8.1. The issue may also be looked at from an entirely different
perspective based on the provisions of the Constitution. Article
158 of the Constitution provides that the Governor shall not be a
Member of Parliament or of a State Legislature and if such a 8
Member is appointed as a Governor, he shall be deemed to have
vacated his seat in the House when he enters upon his office as
Governor. This is significant since it insulates the Legislature
from the Governor. Article 164 of the Constitution provides for
the appointment of the Chief Minister of the State by the Governor
and the appointment of other Ministers on the advice of the Chief
c
Minister. The appointment of the Chief Minister is based on the
postulate that he commands or is expected to command the
support of a majority of Members of the Legislative Assembly.
Therefore, it is not as ifthe Governor has untrammeled discretion
to nominate anyone to be the Chief Minister of a State. Similarly, D
if the Governor chooses to 'withdraw his pleasure' in respect of
a Minister he must exercise his discretion with the knowledge
of the Chief Minister and not by keeping him in the dark or
unilaterally. Article 165 of the Constitution deals with the
appointment of the Advocate General for the State. He is appointed
by the Governor and holds office during the pleasure of the E
Governor and receives such remuneration as the Governor may
determine. The purpose of all these provisions is to indicate that
the discretion given to the Governor is not all-pervasive or all-
encom passing. Article 166 of the Constitution provides that all
executive action of the Government shall be expressed to be F
taken in the name of the Governor, orders and instruments shall
be executed in the name of the Governor and the Governor shall
make rules for the more convenient transaction of business of
the Government and allocation of business among the Ministers
"in so far as it is not business with respect to which the Governor
is by or under this Constitution required to act in his discretion." G
This clearly has reference to Article 163 of the Constitution and
must be understood as meaning that framing the rules under
Article 166(3) of the Constitution is not the discretion of the
Governor but an executive exercise undertaken by the Council
of Ministers. Article 167 of the Constitution relates to the duty H
30 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of the Chief Minister of a State to communicate the decisions of
the Council of Ministers to the Governor and furnish information
to the Governor. Chapter II of Part VI of the Constitution is,
therefore, quite compact and delineates the relations between
the Executive and governance of the State. [Paras 148, 149, 150]
[288-D-E, F-G; 289-B-D, E-H; 290-A-BJ
B
8.2. Amongst others, Article 174 of the Constitution
provides that the Governor shall summon the Legislative
Assembly from time to time and may prorogue and dissolve the
Legislative Assembly. Summoning the House was described by
Pandit Jawaharlal Nehru in the debate on 16'h May, 1951 on the
c First Amendment to the Constitution as "an indirect duty" of the
President. He went on to say that by the President, he meant the
government of the day. Applying this to Article 174 of the
Constitution, the Governor is obliged to perform this indirect
duty. Since this indirect duty is executive in character, it cannot
D be performed except on the aid and advice of the Council of
Ministers so as to avoid a "futile operation" and subject to the
procedure mentioned in the Rules referred to above. Addressing
the House under Article 175(1) of the Constitution or making a
special address under Article 176 of the Constitution would also
be executive functions performed by the Governor on the aid
E and advice of the Council of Ministers. Sending a message to the
House under Article 175(2) of the Constitution might not strictly
be an executive function but would fall in a separate category
altogether which might be described as having a quasi-executive
or quasi-legislative flavour. This entitlement specifically provided
F for in the Constitution is exercised by the Governor as a
constituent of the Legislature and therefore not traceable to the
aid and advise of the Council of Ministers. [Paras 152, 153] [290-
E-G; 291-A-C]
Rai Sahib Ram Jawaya Kapur v. The State of Punjab
G 1955 2 SCR 225 - relied on.
9. There are other executive functions that a Governor is
required to perform with respect to the Legislature. If the
provisions of Article 163 of the Constitution are read into all other
executive functions relatable to the Legislature and the exercise
H of discretion of the Governor cannot be questioned then the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 31
AND OTHERS

Legislature could and would be dominated by the Governor - A
something completely unthinkable in a parliamentary democracy,
where the Governor cannot dominate the Executive but could
dominate the Legislature. Except in specified matters, executive
functions of the Governor whether relating to governance issues
or issues pertaining to the Legislature are required to be
B
performed by him on the aid and advice of the Council of Ministers
and the Rules framed by the House. The only discretion available
to the Governor under Article 163 of the Constitution is in respect
of matters provided for by or under the Constitution not relatable
to the Council of Ministers and the Judiciary. The Speaker gave
a notice to fourteen members of the Legislative Assembly on 71h c
December, 2015 requiring them to show cause why they should
not be disqualified under the Tenth Schedule of the Constitution.
Thereafter, by an order dated 15'h December, 2015 the Speaker
disqualified them from their membership in the Legislative
Assembly. The correctness of this order and the procedure
D
followed has now been decided by the Gauhati High Court and
the correctness of that decision is not before this Court. The
Deputy Speaker passed an order on 151h December, 2015 inter
alia, on the ground that the Speaker lacked the competence to
pass the disqualification order and that he had nqt followed the
constitutional and legal procedures. He had had lost his E
.competence to pass the disqualification order since a notice of
his removal dated 19'h November, 2015 was pending and was to
come up before the Legislative Assembly on 16'h December,
2015. In passing his order of 15'h December, 2015 the Deputy
Speaker purported to derive his power from the message given
F
by the Governor to the Legislative Assembly on 9th December,
2015 requiring the Deputy Speaker to conduct the proceedings
of the House on the resolution for removal of the Speaker. The
Deputy Speaker was to preside over the House on 16'h December,
2015. He certainly had no derivative power from the message of
the Governor dated 9'h December, 2015 to take over the functions G
of the Speaker or to sit in judgment over the decision of the
Speaker of 15'h December, 2015. Even the Speaker does not have
the power to review the decision taken by him under the Tenth
Schedule of the Constitution. Under these circumstances, there
is absolutely no question of the Deputy Speaker setting aside
H
32 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the order of the Speaker passed under the Tenth Schedule of the
Constitution. The Deputy Speaker was himself disqualified from
the membership of the Legislative Assembly by the Speaker and
he could certainly not have set aside the order passed against
him and in respect of which he would be the beneficiary. [Paras
154, 155, 160, 161, 162, 163) [291-C, D-E, G-H; 292-A, G-H;
B
293-A-D, E-G]
MP. Special Police Establishment v. State of MP. (2004)
8 sec 788: 2004 (5) Suppl. SCR 1020; Kihoto
Hollohan v. Zachillhu 1992 Supp.(2) SCC 651: 1992
(1) SCR 686; Kashinath Jalmi v. Speaker (1993) 2
c SCC 703: 1993 ( 2) SCR 820 - relied on.
Mahabir Prasad Sharma v. Prafulla Chandra Ghose
(1968) 72 CWN 328; Pratapsingh Raojirao Rane v.
Governor of Goa AIR 1999 Bombay 53 - Not correct
law.
D State of Punjab v. Satya Pal Dang 1969 1 SCR 478;
Pema Khandu v. The Speaker, Arunachal Pradesh
Legislative Assembly MANU/GH/0118/2016 [decided
on 30th March, 2016; Samsher Singh v. State of Punjab
(1974) 2 SCC 831: 1975 (1) SCR 814; Sardari Lal v.
Union of India (1971) 1 SCC 411 ; Sardari Lal and
E
Jayantilal Amritlal Shodhan v. F.N. Rana (1964) 5 SCR
29; Pu Myllai Hlychho v. State of Mizoram (2005) 2
SCC 92: 2005 (1) SCR 279; State of Gujarat v. R.A.
Mehta (2013) 3 SCC 1: 2013 (1) SCR 1; UN.R. Rao v.
Indira Gandhi (1971) 2 SCC 63: 1971 (0) Suppl. SCR
F 46; S.R. Chaudhuri v. State of Punjab (2001) 7 SCC
126: 2001 (1) Suppl. SCR 621- referred to.
Case Law Reference
Per Jagdish Singh Khehar, J.:
1975 (1) SCR 814 referred to Para 43
G (1971) 1 sec 411 referred to Para 43
2005 (1) SCR 279 referred to Para 46
2905 (1) SCR 279 referred to Para 46
1997 (1) SCR 138 referred to Para 46
1997 (2) Suppl. SCR 305 referred to Para 46
1993 (2) SCR 820 referred to Para 53
H (201Q) 6 sec 331 referred to Para 95
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 33
AND OTHERS

(1994) 3 sec 1 referred to Para 96 A
1979 (3) SCR 802 referred to Para 98
AIR 1973 (Madras) 371 referred to Para 99
AIR 1999 (Born.) 53 referred to Para 99
1969 SCR 478 referred to Para 101
AIR 2002 (Gauhati) 7 referred to Para 101
B
2004 (5) Suppl. SCR 1020 referred to Para 114
2013 (1) SCR 1 referred to Para 114
(1968) 72 C.W.N. 328 Not correct law Para 144
AIR 1999 (Born.) 53 Not correct law Para 144
(1973) 4 sec 2s referred to Para 118
(2011) 10 sec 1 referred to Para 124 c
(1982) 2 sec 463 referred to Para 124

Per Dinak Misrai J.:
1978 (2) SCR 1 relied on Paras
2001 (1) Suppl. SCR 621 relied on Para6
2006 (7) Suppl. SCR 336 D
relied on Para 7
(1992) 1 sec 309 relied on Para 19
2014 (9) SCR 965 relied on Para 20
-~

Per Madan B. Lokuri J.:
1955 2 SCR 225 relied on Para 41 E
(1968) 72 CWN 328 Not correct law Para 45
1969 1 SCR 478 referred to Para 51
1975 (1) SCR 814 referred to Para 62
(1971) 1 sec 411 referred to Para 62
(1964) 5 SCR 29 referred to Para 70
AIR 1999 Bombay 53 Not correct law Para 72 F
2004 (5) Suppl. SCR1020 relied on Para 78
2005 (1) SCR 279 referred to Para 81
2013 (1) SCR 1 referred to Para 82
1971 ( 0) Suppl. SCR 46 referred to Para 144
2001 (1) Suppl. SCR 621 referred to Para 145 G
1992 (1) SCR 686 relied on Para 145
1993 ( 2) SCR 820 relied on Para 162
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6203-
6204of2016.
From the Judgment and Order dated 13.01.2016 of the High Court
H
34 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of Gauhati in W. P. (C) No. 7745 of 2015 and W. P. (C) No. 7998 of
2015.
Fali S. Nariman, Kapil Sibal, Vivek Tankha, Ashok Desai,
Subramonium Prasad, T. R. Andhyarujina, Satya Pal Jain, Ram
Jethmalani, Sr. Advs., Arunabh Chaudhary, Ms. Heena Khan, Subhash
Sharma, Vaibhav Tomar, G. Panmei, Ankur Chawla, Nizam Pasha, Ms.
B
Kanika Singh, Ms. Megha Gupta, Ashish Jha, Samir Malik, D. Kumanan,
Varun K. Chopra, Sachin Pujari, Parth T. (for Sarvesh Singh Baghel),
Raj iv Dalal, Ashmeet Singh, Anmol Chandan, Mrs. Deepika Kalia, Abhay
Kumar, Tenzing Tsering, Ms. Meha Aggarwal, Aditya Singh Bhakti,
Vardhan Singh, Vikas Singh Ja11gra, Vikramjit Banerjee, Amit Kumar
c Pathak, Siddharth Sijoria, Soumik Ghosal, Ms. Madhavi Divan, Ms. Nidhi
Khanna, Jayant Mohan, Advs. for the appearing parties.
The Judgments of the Court were delivered by
JAGDISH SINGH KHEHAR, J. I. Leave granted.
2. The 5th session of the Arunachal Pradesh Legislative
D Assembly (hereinafter referred to as, the Assembly/House) was
concluded on 2 I .10.2015. On 3.11.2015, the Governor issued an order
summoning the 6th session of the Assembly, to meet on 14.1.20 I 6 in the
Legislative Assembly Chamber at Naharlagun. The instant order was
passed by the Governor, on the aid and advice of the Chief Minister, and
E in consultation with the Speaker of the House. The 6th session of the
House was preponed by the Governor from 14.1.2016 to 16.12.2015, by
an order dated 9.12.2015 indicating imer alia the manner in which the
proceedings of the House should be conducted. In its support, the
Governor issued a message on 9.12.2015. These actions of the Governor, \
according to learned senior counsel for the appellants, demonstrate an
F extraneous and inappropriate exercise of constitutional authority. The
above order and message of the Governor, without the aid and advice of
the Council of Ministers and the Chief Minister, constitute the foundation
of the challenge raised by the appellants.
3. When hearing in these appeals commenced, the impression
G given out was, that the sequence of facts relating to the affairs of the
House and the MLAs, by itself wquld be sufficient to establish, that
constitutional responsibilities were exercised in such manner, as would
be sufficient for this Court to strike down the same. The same position
was espoused on behalf of the respondents, who also advocated that the
factual back~round, would establish the legal and constitutional validity
H
NABAM REBIA, AND BA.MANG fELJI){ v. DEPUTY SPEAKER 35
AND OTHERS t1AGDISH SffiGH KHEHAR, J.]

of the Governor's actions. And also, that the Governor had passed the A
impugned order, and issued the impugned message, bona fide. The
narration of facts, therefore assumes significance.
The foundation of the appellants case:
The first sequence of facts:
4. In order to project the correct narrative (as per the B
understanding, of learned counsel, representing the appellants), towards
highlighting the factual position, it was urged, that the political posturing
in the State of Arunachal Pradesh, commenced after the Governor -
Jyoti Prasad Rajkhowa assumed charge on 1.6.2015.
5. It was suggested, that when the Governor assumed office, c
there was a brewing discord amongst members of the ruling Indian
National Congress (hereinafter referred to as the INC). Only a few
days after the Governor took over charge, the President of the Arunachal
Pradesh Congress Committee - Padi Richo addressed his first
communication to theChiefMinister-Nabam Tuki (on 18.6.2015), inviting
his attention to reports received from party workers, regarding breach D
of party discipline. On the same lines, another letter was addressed by
the party President, to the Chief Minister on 1.9.2015. The text of the
same is extracted hereunder:
"In reference to my earlier letter no.nil dated 18/6/2015 in
connection with repo11s received from party workers regarding E
breach of discipline by some of the Congress legislators by their
active involvement in anti-party activities, which has been seriously
viewed by the AICC and APCC. But despite of that, it has been
reported by party functionaries and workers that some of the
congress legislators are still actively indulging in indiscipline and
F
various anti-party activities.
Therefore, all the Congress legislators are requested to refrain
themselves from indulging in such anti-party activities and maintain
paify discipline."
6. It was submitted, that strenuous efforts were ongoing, to quell
G
the intra-party dissidence. It was asserted, that resignation letters of
two MLAs belonging to the INC - Wanglam Sawin and Gabriel D.
Wangsu were accepted on 6.10.2015, whereupon, they stood removed
from the House. The details of the ongoing disruptive activities within
the Congress Legislature Party, as also, the involvement of the Governor,
was sought to be demonstrated, by placing reliance on two further H
36 SUPREME COURT REPORTS [2016] 6 S.C.R.

A communications, the first of which (dated 11.10.2015), was addressed
by the removed MLAs, to the Governor. A relevant part of the same, is
reproduced hereunder:
"Sub: Commission of an enquiry into the forceful resignation.
Your Ex_cellency,
B With great pain and indignation, we the undersigned Members of
Legislative Assembly of the Sixth Arunachal Pradesh Legislative
Assembly would like to apprise your benign authority about some
disturbing, degraded and inglorious conduct of the leader of the
Congress Legislative Party-cum-incumbent Chief Minister and
c his supporters for favour of your kind information and necessary
action please;
Your Excellency, on 14111 Sept 2015 at around 5 pm, we were
repeatedly informed through phone calls requesting us to join "a
get-together dinner party", purportedly on the invitation of Mr.
Mama Natung, HMLA, at his residence at Senki View area,
D Itanagar. Some 18 MLA colleagues from the Congress Party
visited his residence for the dinner but were instead asked to join
an informal discussion on the prevailing political crisis faced by
the Congress led State Government under the ChiefMinistership
of Mr. Nabam Tuki. All members participated in the discussion
E which revolved around support for Mr. Tuki and further the issue
of initiating actions against any member not adhering to the decision
to be loyal to Tuki was discussed. Also it was decided to form a
group of 'like-minded' legislators and accordingly formed S-18 or
Super-18, besides forming one Action Committee tasked to take
necessary actions against those MLAs who do not abide by the
F decisions takenjointly by the group. Thereafter, we had our dinner
and left.
Your Excellency, on l 61h September' 2015, we were informed by
Mr. Nyamar Karbak, MLA who was the coordinator of S-18 to
join a dinner party at the official residence of Hon'ble Chief
G Minister Mr. Nabam Tuki. Like the other day, this time also 17 of
us went together to attend the dinner hosted by the Chief Minister
which amongst other included, i) Gabriel D.Wangsu, ii) Mr.
Wanglarri Sawin, iii) Phurpa Tsering, iv) Mr. Jam bey Tashi, v) Mr.
TirongAboh, vi) Mr. Dikto Yikar, vii) Mr. Mama Natung, viii) Mr.
Pani Taram, ix) Mr. Nikh Kamin, x)-Mr. Nyamar Karbak, xi) Mr.
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 37
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Bamang Felix, xii) Mr. Techi Kaso, xiii) Mr. Tatung Jamoh, xiv) A
Mr.Alo Libang, xv) Mr. Tapuk Taku, xvi) Kumsi Sidisow, xvii)
Mrs. Karya Bagang.
Like the preceding night, some of the MLAs like Mr. Nyamar
Karbak, Mr. Bamang Felix, Mr. Mama Natung and Mr. Nikh
Kamen suddenly started discussion on the political matter and 8
requested 17 of us to support Tuki and to protect his leadership
from being ousted by the dissident group of the party. Most of us
participated in the said discussion though reluctantly with certain
reservations in our mind and heart. The gathering instead of being
a dinner party was turning more into a political meeting and some
MLAs, to our anxiety and panic, aggressively tried to persuade C
and prevail upon us thereby, putting all of us in a very stressful
and awkward situation. There was little room left for further
discussion or dissent.
Thereafter. some of our MLA colleagues came up with a strange
proposal to sign and submit irrevocable resignation letter in the D
hand of HCM to show our loyalty to his leadership. We were
baffled and dumbstruck by hearing the undemocratic. dangerous
and inappropriate proposition placed before us by him. All of us
were confused and couldn't gather the courage to protest against
the said proposal in the presence of the CM, Speaker of the
Assembly and PCC president. Then some of the loyalists of Mr. E
Tuki namely Nyamar Karbak and Bamang Felix holding ready
and prepared stereotype resignation letters in their hands came to
us and handed over to each of us and asked us to put our signatures.
The whole drama took place in presence of Mr. Nabam Tuki, CM
and Mr. Padi Richo, President, Pradesh Congress Committee and F
putting us in strained mental torment and duress compelled us to
hurriedly sign the resignation letter without even reading the content
thereon, against our will and against the spirit of democracy. After
getting us to sign the papers they collected the same and handed
over to the Chief Minister Mr. Nabam Tuki.
G
Furthermore, we were given strict instruction and direction not to
mention the date in our signatures. And just before the dinner,
after concluding the meeting and signing of the resignation letters,
surprisingly Speaker Nabam Rebia to arrived and joined in the
dinner party at the CM's official residence. Soon thereafter a
group namely 'S-1 S'was formed in the Whatsapp. However, both H
38 SUPREME COURT REPORTS [2016) 6 S.C.R.

A of us were removed from the group on 6 h October 2015.
1

Now under the above circumstances, we would like to inform
you that those resignation letters were signed by all 17 of us under
complete duress having obtained illegally and wrongfully. In this
regard, the following arguments may be taken into considerations;
B i) That we were invited to attend an informal dinner party hosted
by the HCM for 17 of us. It was neither a CLP meeting nor a
party meeting to discuss politics as only 17 ofus were invited for
the dinner at the official bungalow of the HCM. It is equally true
that we were invited for a dinner and not for signing our own
resignation letters.
c
ii) That none of us could muster the courage and spirit to protest
the unholy and vicious agenda of the HCM that too in his presence
and that of the Speaker, both holding high constitutional posts, and
President, PCC.
iii) That all the resignation letters signed by us were stereotype or
D identical copies of one single letter which speaks volume about
the dishonest intention of the HCM, Speaker and his supporters
as he was ready with the resignation letters which again established
that everything was planned before hand with the help and support
of the Speaker of the Legislative Assembly to obtain our signatures
E in the resignation letters by hook or crook and insti II fear in our
mind. Invitation to the dinner party was only a ploy to trap us in
the larger game plan to secure the Chief Ministerial Chair.
iv) These disgracing, undemocratic and unethical action has brought
disgrace to the benign office of the Chief Minister and the Speaker
as their conduct are completely unbecoming of a Chief Minister
F
as well as for holding the prestigious and dignified chair of the
Speaker. Their illegal and wrongful act of obtaining our signatures
by putting us in duress is nothing but criminalization of politics and
brute murder of democracy and its values and principles for their
vested personal interest which is punishable under relevant law
G of the land.
v) !fan elected representative is not allowed to take any decision
out of his conscience and free will it tantamounts to murder of the
very basic fabric of democracy which will bear negative impact
in overall contribution to the state's governance, and above all
H that would be murder of democracy.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 39
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

vi) The reason quoted in the resignation letter is also highly A
inconceivable and ludicrous. How could any elected representative
including us after being elected by the people would tender the
resignation on such irrational, unjust and unfounded ground.
Your Excellency, vide our letter dated 01-10-2015 addressed to
the Speaker of the Legislative Assembly which we had submitted B
to the office of the Speaker on 05-10-2015 before noon. we have
elucidated the facts and circumstances under which our signatures
in the resignation letters were obtained on 16-09-2015 at the official
bungalow of CM and that the same was obtained under duress
against our consent and free will, therefore requested the Speaker
not to accept the resignation letter and to treat the same as invalid, c
null and void until and unless we come in person to submit the
resignation letters.
However, ironically, after submission of our letter, it came to our
knowledge that the Speaker had without following the provisions
as enshrined in Article 190(3)(b) of the Constitution and Rule D
200(2) of the Rules of Procedure and Conduct of Business in the
Arunachal Pradesh Legislative Assembly had purp01iedly issued
a notification dated 01-10-2015 accepting our resignation and
declaring our respective seats to have fallen vacant. The said
notification was published in the evening of 05-10-2015 only
immediately after submission of our withdrawal letters to the E
Speaker.
Article 190(3)(b) of the Constitution reads as follows;
xxx xxx xxx
Rule 200(3) of the Business Rules reads as follows;
F
xxx xxx xxx
Thus, the abovementioned provisions casts an obligation on the
Speaker to make inquiry regarding the voluntariness and
genuineness of the resignation letters when the resignation letters
are not submitted in person but since the Speaker himself is a
party to the whole episode playing hand in glove with the CM, G
therefore, he choose to do away with the laid provisions of the
law.
xxx xxx xxx
Your Excellency, since the notification dated 01-10-2015 was
H
40 SUPREME COURT REPORTS [2016] 6 S.C.R.

A issued by the Speaker without following the established principles,
therefore we had approached the Hon'ble Gauhati High Cout1
challenging the said notification vi de WP (C) No.6193/2015. The
Hon 'ble Gauhati High Court after considering the whole facts
and circumstances of the case was inter-al ia pleased to stay the
operation of the impugned notification dated 01-10-2015 vide order
B
dated 07-10-2015. The Hon'ble Court further observed that prima-
facie the requirement of Rule 200(3) of the Procedure and Conduct
of Business and the incorporated proviso to A11icle 190(3 )(b) of
the Constitution do not seem to have been complied and directed
the Election Commission not to take any action on the basis of the
c said notification.
xxx xxx xxx
Your Excellency, along with us, 15 other MLAs had also signed
the resignation letters and handed over the same to the CM in the
presence of the PCC Chief, but why only our resignation letters
D were entertained and accepted by the Speaker. What happened
to the other resignation letters signed by 15 other MLAs? Why
no action has been taken till date on the resignation letters of
other 15 MLAs who till date has not withdrawn their resignation
letters?

E xxx xxx xxx
We, therefore, request your Excellency to look into the issue
seriously to uneatth the unholy nexus between the Chief Minister,
the Speaker of the Legislative Assembly and PCC, President.
And why the Chief Minister has adopted such wrongfol and illegal
means to obtain the resignation letters from us, and what compelled
F him for such a criminal act is the million dollar question.
In view of the above facts and circumstances, it is our humble
requestto your august office to immediately enquire into the whole
resignation incident through independent investigating agency like
CBI because both the culprits are holding high constitutional posts,
G i.e. Chief Minister and Speaker and there cannot be free: and fair
investigation, iif conducted by the State Investigation agency and
take stringent wction against all the persons involved in the whole
crime by booki1ng each and everyone under appropriate provision
of law."

H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 41
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

According to learned counsel, it is shocking and distressing, that the A
above letter should have been addressed to the Governor, who has no
role in intra-party affairs. The above letter and inferences, according to
learned counsel, were suggestive of political motivation. The second
communication dated I I.I 0.2015 was addressed (to the Governor) by
20 MLAs of the INC, jointly with two Independent MLAs. A relevant
B
extract of the instant communication is reproduced below:
"Sub: Complaint against the policy of absolutism of the Chief
Minister.
Your_ Excellency,
We the incumbent MLAs of INC party amongst them some are c
sitting Ministers in the present ruling dispensation of the State
being perturbed and disillusioned with the current dismal and grim
state of affairs of the State Government and the tyrannical style
of incumbent Chief Minister Shri Nabam Tuki in running the
government would with profound veneration most humbly like to
state the following few lines for favour of your perusal and D
necessary appropriate action;
His Excellency, it has been learnt through the print media that the
Chief Minister _is contemplating to literally drop four veteran,
experienced and highly regarded leaders like i) Mr. Chowna Mein,
Agriculture Minister, ii) Mr. Kamlung Mossang, Food & Civil E
Supply Minister, iii) Mr. Kumar Wai, Cooperation Minister and
Mr. Wanglin Lowangdong. Social Welfare Minister from the council
of Minister without articulating any cogent reasons either implicit
or explicit for taking such a drastic and unpleasant measure at
this particular junction when the State is experiencing acute
financial crisis having occasioned due to the misrule, F
shortsightedness, autocratic policies and wrong decisions of the
incumbent Chief Minister coupled with excessive unplanned,
wasteful expenditures and financial mismanagement leading the
state to a complete stalemate with development activities in the
State in a complete standstill and clouding the State with complete G
darkness of financial depression.
His Excellency, your benign authority may be well aware of the
fact that the State under the leadership of Mr. Nabam Tuki, CM
has been reeling under the burden of humongous financial liabilities,
insurmountable debts and burden of overdrafts for last 3 years
H
42 SUPREME COURT RFPORTS [2016] 6 S.C.R.

A due to gross and unprecedented level of corruption, fraudulent
misappropriation and embezzlement of the project specific funds
and revenues of the government.
His Excellency, it is ve1y unfortunate that there are serious charges
of criminal misconduct, nepotism and corruption against Shri
B Nabam Tuki on numerous counts which are as follows;
I) Awarding contract to his family and relatives by abusing his
12ower and position without floating tenders and secured pecuniary
gain by illegal and dishonest means in clear v~()lation of coda!
formalities. The Hon'ble Gauhati High Court tal-;ing cognizance
of the allegations against Nabam Tuki, CM vide Judgement and
c Order dated 21-08-2015 in WP (C) No. 1267/20 I 0 has directed
the CBI to register a case and conduct investigation against the
alleged misconduct ofShri Nabam Tuki in awarding contracts to
his wife, sister-in-law, brother and other near relatives without
calling tenders by abusing his official position as a Minister. The
D Hon 'ble Court also directed the CBI to probe and investigate the
alleged UCO bank transaction of Rs.30,00,000/- (Rupees Thirty
Lacs) only allegedly deposited in the account number of Mr.
Nabam Tuki by Mr. N .N. Osik, the then Director of Food & Civil
Supplies.
2) Serious allegation against the incumbent CM who also holds
E
the charges of Finance, Planning and Disaster & ReliefMinistries
for gross misuse and embezzlement ofrelieffunds under NDRF
& SDRF. In this connection also two PILs are pending in the
Hon'ble Gauhati High Court being numbered as PIL No. 62/201 S
& 65/20 l Sand vidc order dated 06/08/20 l S the Hon' blc Gauhati
F High Court was pleased to admit both the PILs by rejecting the
preliminary objection of the State Government on the issue of
maintainability of the cases and made an observation that "there
appears to be some prima facic case to be enquired into the
justification of the State in making assessments regarding natural
disaster". In this connection the Controller and Auditor General
G
oflndia is also conducting an enquiry into the allegation.
3) Gross misuse and siphoning of Rroiect specific funds under
Centrally Sr.onsored Scheme (CSS) as a result of which majority
of the projects or works under abovementioned schemes has not
been completed and/or are under progress. Worst some have even
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 43
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

not been commenced and will never see the light of the day because A
all the grant and assistance provided by the GO! has been
whimsically and capriciously diverted and misused under Non-
Plan head and PDS. Though majority of the works and projects
has not been completed but the funds have been completely
exhausted creating colossal financial liabilities to the tune of
B
Rs.6911.55 Crores. That is the sole reason, why the state
government is unable to furnish the UC as demanded by the GOL
The Ministry of DONER has instituted an enquiry to unearth the
degree of corruption.
4) The State Government is reeling under the burden ofoverdraft
for consecutively two years. The Government committed an c
overdraft of Rs.(-) 449.76 Crores during 2013-14 and Rs.(-)
581.38 Crores during last financial year 2014-15. The current
overdraft till May' 2015 is Rs.(-) 222 Crores bringing the total
overdraft to the tune of Rs. (-) 1,253 .14 Crores. The amount of
overdraft are to be repaid by the State government to the RBI D
with 13% interest rate which in turn will affect the development
of the State, as the Government will be forced to utilize the plan
money for the repayment of the overdraft.
Your Excellency, overdraft, suspension of government bank
transactions, inordinate delay in disbursement of pension, GPF,
TA/DA and other benefits to the government employees, transfer E
of funds in the civil deposits of the government, non-payment of
bil Is to the contractors and suP12liers against the completed works
and non-payment of stipend to the students has become an order
of the day.
Your Excellency. Shri Nabam Tuki. CM is adopting all sorts of F
illegal and unlawful means in order to quell and crush the voices
of dissent who having been disillusioned and disenchanted with
his misdeed and style ofrunnlng the State Government in a despotic
and autocratic manner has intensified their demand in recent days
for a change in the leadership. He is even indulging in criminal
G
and immoral activities to secure his Chief Ministerial post. It is
very disheartening that Shri Nabam Tuki. CM with the suppo11 of
handful of his protagonist invited 17 MLA's for a dinner pmty at
his official bungalow and has forcefully obtained signatures of the
17 MLA's in a resignation letters authored and produced at his
H
44 SUPREME COURT REPORTS [2016] 6 S.C.R.

A residence by putting them under intense duress and pressure with
the objective to use the same as a tool to blackmail them not to
shift their loyalty or allegiance.
xxx xxx xxx
7. Your Excellency, in a democratic and parliamentary form of
B government, the legislators of the single largest pa1ty in the
legislative assembly select a leader amongst themselves to lead
them who is called as a leader of the legislative party and the
selected leader accordingly becomes the Chief Minister and forms
a government. If the leader upon being selected loses the goodwill,
trust and confidence of the legislators who have selected him, the
c legislators can change or replace the said leader with more
efficient, capable and competent leader to run the government.
In context to the present prevailing political scenario of the State
the CM has lost the goodwill, trust and confidence of majority of
the legislators which can gauged from the CLP meeting which
D was held on 29-09-2015 where only 22 party legislators attended
the meeting. Immediately thereafter a Cabinet was also summoned
by the CM and similarly the meeting not attended by majority of
the Cabinet Ministers and was less than the necessary quorum
for taking any major decisions, therefore, it is the CM who should
be tendering his resignation papers rather than dropping highly
E
respected and decorated sitting Ministers who have serving the
State to the best of their caRability and capacity without any
complaint or blemish on their integrity.
xxx xxx xxx
Therefore, in view of the above facts and circumstances of the
F case, it is our collective earnest request and appeal to your
esteemed office not to ente1tain the decision of the incumbent
CM as he is running a minority government and enjoys the support
of only handful of legislators as he has lost the confidence and
goodwill of the majority of the legislators. If the CM is allowed to
G prevail then it will tantamount to murder of democracy and
parliamentary form of government.
With regards,
signed by 20 INC MLAs and
2 Independent MLAs.
Yours faithfully,"
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 45
AND OTHERS [JAGDJSH SINGH KHEHAR, J.]

It was submitted, that despite the position being clear, that a Governor A
has no role in internal party feuds, details as noticed in the letter extracted
above, were being provided to the Governor. Illustratively it was
submitted, that the manner of functioning of the Chief Minister, or the
likely change in the composition of the Cabinet, or the manner in which
financial affairs of the State were being handled, or the prevailing
B
allegations of corruption against the Government, and such Iike matters,
are beyond the realm of cognition and responsibility of the Governor.
And yet, were being brought to the notice of the Governor. It was
urged, that all this was being done, because of the belief of the dissident
faction, that the Governor would act thereon. This, because of the tacit
support, by MLAs belonging to the Bharatiya Janata Party (hereinafter c
referred to as, 'the BJP'). It was highlighted, that the involvement of
two Independent MLAs along with 20 MLAs of the INC, in the letter
dated 11.10.2015, needed to be pointedly noticed. Because it
demonstrates, not only dissension within the party, but also the involvement
of support from outsiders. The connotations of the above second letter,
D
according to learned counsel, were also suggestive of political motivation.
7. Having highlighted the alleged divisive activities of the
breakaway group ofMLAs within the INC, itz was submitted, that the
party President - Padi Richo, was right in perceiving, that the above
actions amounted to breach of party discipline. The party President
accordingly, addressed individual communications dated 12.10.2015, to
E
the defaulting MLAs, wherein he brought to their attention, the party's
impressions. A relevant extract of one of the said communications is
~eing reproduced hereunder:

"It has been reported by pmiy functionaries and workers of your
constituency and the Block/District Congress Committee that you F
are indulging in various activities which amounts to breach of
discipline of the Party under Claus 4(a), (b) and (c) of the
Constitution of Indian National Congress. In this connection I
have also issued a Circular to all Party MLAs and Leaders on 1"
September 2015 making it clear that action will be taken against G
any such leader indulging in indiscipline and anti-party activities.
The matter was placed before the Executive Committee of the
PCC on 6!h October 2015 and the Committee is of the view that
there is a prima facie breach of discipline from your side. You are
hereby called upon to explain the charges made against you within H
46 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 15 days time as to why disciplinary action as it may deem fit is not
taken against you."
Your failure to reply within the above stated time will be considered
as that you have no explanation or reply to be given, and appropriate
action as deemed fit, will be taken against you without any further
B notice."
g, At the instant juncture, a meeting inviting all members of the
Congress Legislature Party was convened for g.11.2015, which was to
be attended by representatives of the central leadership. An extract of
the communication dated 5.11.2015, calling the above meeting, is
c reproduced below:
"No.CM(AP - 11/2015 dtd 05 1" Nov, 2015[:] Please convey the
following message by quickest means as under[.] quote[.] From
Shri Nabam Tuki, Chief Minister to all Congress MLAS/
Parliamentary Secretaries/Ministers[.] As directed by Shri V.
D Narayanasami, General Secretary, AICC, In-Charge, Arunachal
Pradesh a meeting of all members of Congress Legislature Party
(CLP) convened on gm_J.J_o_y~mber, 20 l 5(Sunday) at 4.30 PM
repeat gm November,2015 at 4.30 PM at Raj iv Gandhi Bhawan,
Itanagar[.] Meeting will be attended by [.] One[.] Shri V
Narayanasami, General Secretary, AICC, In Charge[.] Two[.]
E Dr. Jayakumar, AICC Secretary,[.] Three[.] Shri Padi Richo,
President PCC among others[.] Request to attend the meeting as
directed by Shri V Narayanasami, GS, AICC positively[.]
unquote[.] Plse confirm N.T.T."
Immediately on receipt of the aforesaid invitation, the same 21 dissident
F MLAs, addressed a joint statement to the party leadership, that they
would not be attending the meeting (scheduled for g. f 1.2015), as the
Chief Minister - Nabam Tuki had lost all moral credibility to lead the
House. An extract of the contents of above joint assertion is reproduced
below:
G " ... It has come to our notice that a CLP meeting has been
convened on g'" November 2015. There are already differences
of opinion with regards to autocratic way of functioning and
disrespect for inner democracy of the party with the present CLP
leader Mr. Nabam Tuki. Were clearly denounce his legitimacy as
the leader of Congress Legislature Party of Arunachal Pradesh.
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 47
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Under this circumstances any meeting called under his leadership A
do not carry any substance and holds no water. He has lost all
the moral credibility to lead the party in the house.
Therefore, we the undersigned Congress legislature party members
have unanimously decided not to attend the CLP meeting called
under the leadership of Mr. Nabum Tuki." 8
signed by 21 MLAs of the INC.
9. On 12. I 0.2015, the President of the Congress Legislature Party
issued a show cause notice to 19 MLAs belonging to the INC, for indulging
in activities, indicative of breach of sincerity and commitment towards
the INC. Another communication was also issued to all MLAs belonging c
to the INC, to attend a party meeting, at the residence of the leader of
Congress Legislature Party. It was submitted, that the same 21 legislators
belonging to the INC again addressed a joint statement to the Chief
Minister, wherein they contested his legitimacy, as leader of the INC.
The said legislators, again refused to attend the meeting. They also D •
issued a press note, to openly announce their aforesaid stance. In a
meeting held on 8.11.2015, the central leadership of the Congress Party
affirmed, its support to the Chief Minister- Nabam Tuki. It was pointed
out, that thereafter, another notice was issued for holding a meeting of
the legislators, belonging to the INC, on 18. I I .2015. Yet again, the same
21 MLAs did not attend the meeting, and reiterated their point of view, E
with reference to the leadership of the Chief Minister. It was asse11ed
on behalf of the appellants, that this was a revolt of sorts, within the
INC.
10. In their narration, learned cotinsel also pointed out, that on
16.11.2015, a notice ofresolution for the removal of the Deputy Speaker F
- Tenzing Norbu Thongdok, was moved. The same was allegedly moved
by 16 MLAs, belonging to the INC. As a matter of clarification, it would
be pertinent to mention, that the Deputy Speaker had been elected as an
MLA, on the nomination of the INC.
11. On 19.11.2015, a notice of resolution for the removal of the G
Speaker of the Assembly- Nabam Rebia, was moved by the 13 MLAs
- 11 belonging to the BJP, and 2 Independent MLAs. It was submitted,
that the aforesaid notice was issued under Article 179( c) read with A11icle
181, and Rules 151 and 154 of the Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly, framed under
H
48 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Article 208 (hereinafter referred to as, the 'Conduct of Business Rules').
The notice depicted the following grounds for the removal of the Speaker:
"(i) The Constitution and democracy are not safe in the hands of
the Speaker, as he has unseated two members of the Arunachal
Pradesh Legislative Assembly;
B (ii) That he has flagrantly violated the Constitution;
(iii) That Speaker has not been functioning as a neutral person;
(iv) That the Speaker has been appointing secretarial staff/persons
without following administrative procedure."
c 12. Yet another meeting ofMLAs belonging to the INC, was held
on 18.11.2015. The allegedly errant 21 MLAs belonging to the INC, did
not again attend the meeting. It was asserted, that in order to take stock
of the ongoing activities of the 21 dissident MLAs, another meeting of
the Congress Legislature Party was held on 3.12.2015, wherein the
D
participants took note of the prevailing situation, by recording the following
proceedings:
"This meeting of the Congress Legislature Party, Arunachal
Pradesh, held on today, the 3™ December at 4.00 P.M. at Itanagar
unanimously resolves to request the Party Leadership and the
Congress High Command at Delhi, bringing to your kind attention
E
;i letter dated 2llil November 2015 signed by 21 elected members
of the Congress Legislature Paity Arunachal Pradesh, in clear
undemocratic, indis..£!.Rline and unheard manner dictating terms
and excuses for absenting and voluntarily distancing from the
Congress Legislature Patty, Arunachal Pradesh against procedure
F established by the rules and regulations of the pa1ty, challenging
the democratically elected Congress Legislature Party leaders
authority, instead of participating in the meeting as members of
the Congress Legislature Party and express whatever opinion,
suggestion or grievances which can be resolved or decided by the
Congress Legislature Party in its meeting.
G
It is also requested that the Congress High Command may make
it clear that whether the signatories of the letter are staying back
in Delhi as per the advice of the AI CC in spite of the fact that, the
above group of Legislatures voluntarily abstained from the earlier
CLP meeting held on l 61h November, 2015, which was attended
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 49
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

by the General Secretary, AICC in charge of Arunachal Pradesh A
Shri V. Narayanaswamy, Dr. Jayakumar, Secretary AICC and
Shri Padi Richo President APCC on the same grounds.
The meeting of the Congress Legislature Party also bring to the
notice of the Party Leadership that the activities of the above 21
MLAs who have formed a separate group distancing themselves 8
from the Congress Party, is working against the interests of the
Party and the democratically elected Government of the Party,
which is taking all-round efforts to develop the State and working
untiringly to improve and help the people of Arunachal Pradesh,
which got elected with an unprecedented mandate in the Assembly
election held on 2014." c
13. It was submitted, that the said 21 dissident MLAs, were
publicly proclaiming, that V. Narayanasamy, a former Union Minister,
and the All India Congress Committee in-charge for North Eastern States,
was supporting them in their cause. V. Narayanasamy had to address
identical letters to all the 21 dissident MLAs, on 6.12.2015, to repudiate D
their assertion of his support. The text of the aforesaid communications
is reproduced below:
"AICC has received copies of letters dat(;':d I 5. 11.2015 and
02.12.2015 addressed to the Chief Minister written by you and 20
other MLAs of the Congress Legislative Pai1v, Arunachal Pradesh E
in which you have claimed and alleged that I have advised you to
stay back in Delhi to bring a solution to the present stalemate in
the Party.
2. The above statements are false and against the directions given
by me and the Party Leadership at Delhi and Itanagar. In the F
CLP meeting held on 16.11.2015 at Itanagar, I categorically made
a statement that the Party Leadership is wholly supporting the
present Chief Minister, Shri Nabam Tuki who is CLP leader having
majority and if any grievance, any of the CLP member is having
can be sorted out in the Pai1y forum instead of giving public
statements and working against the Chief Minister or the Govt. of G
Arunachal Pradesh.
3. You have also willfully did not attend three consecutive CLP
meetings and boycotted the same.
4. Instead of listening to my statement and direction, you have
H
50 SUPREME COURT REPORTS [2016] 6 S.C.R.

A made contrary statements and false allegations against me and
the Party Leadership which is not acceptable."
The President of the Arunachal Pradesh Congress Committee - Padi
Richo was required to deliver the said letters to the 21 dissident MLAs,
and also, to obtain their acknowledgement. Which he did.
B 14. It was highlighted, that the aforesaid activities of the dissident
members of the INC, compelled the President - Padi Richo, to again
issue identical letters to the concerned MLAs on 7.12.2015, with a copy
to the Chief Whip of the Congress Legislature Party - Rajesh Tacho.
The text of the above letter is reproduced below:
c "AICC has taken serious note of your activities against the party,
continuous attacks, defamatory and unfounded allegations and
propaganda against the Chief Minister and the Council of Ministers
of Arunachal Pradesh and the Congress Party calculated to lower
the prestige of the party, inspite ofour repeated directions not to
D indulge in any such activities which amounts to breach of discipline
of the party.
By such continuous actions and activities you have distanced
Y-9Jl\]elf and ft:g_!}lyour conduct we have come to the conclusion
that you have voluntarily given up your membership of Indian
National Cong[ess and the Congress Legislature Party.
E
I am enclosing herewith he letter received from the General
Secretary, AICC vi de dated 06/ 12/20 I 5, addressed to you in this
regard."
I 5. It was also pointed out, that a very important event, sponsored
F by the respondents, took shape on 19.11.2015. The 13 MLAs who had
issued the notice of resolution for the removal of the Speaker- Nabam
Rebia, forwarded its copy to the Governor, with a covering letter dated
19.11.2015, wherein, they requested the Governor, to prepone the 6th
session of the Assembly. Their prayer was aimed at expediting the
removal of the Speaker- Nabam Rebia. This, according to the appellants,
G is apparent from the fact, that the request for preponement was sought
on the ground, that the issue ofremoval should be taken up immediately
after completion of the 14 days notice, mandated under Article l 79(c).
The 13 MLAs also pressed, through their above letter, that the party
composition in the House, be not altered, till the resolution for removal of
H the Speaker, was finally disposed of.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 5I
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

16. In narrating the facts, it was pointed out, that in the meeting of A
the members of the Congress Legislature Party held on 3.12.2015, the
activities of the dissident members of the party were highlighted, indicating
their rebellious postuting. The central leadership of the INC, at this
juncture, again supported the leadership of Chief Minister- Nabam Tuki.
The central leadership further took note of the fact, that 21 members of
B
the Congress Legislature Party, had distanced themselves from the party.
It was therefore, that the Chief Whip of the Congress Legislature Party
- Rajesh Tacho, filed a petition under Paragraph 2( 1)(a) of the Tenth
Schedule on 7.12.2015, seeking disqualification of 14 MLAs of the INC.
The disqualification of the 14 MLAs had been sought on the ground, that
they had snapped their ties with the INC, by their refusal to respond to, c
or associate with the political leadership in the State, and fortheir having
expressly refused to attend the meetings of the party held on 29.9.2015,
8.11.2015, 18.11.2015 and 3.12.2015. And also, for having issued a press
note, to publicly air their views. The above disqualification petition, was
presented to the Speaker. It would be relevant to mention, that the name
D
of the Deputy Speaker - Tenzing Norbu Thongdok, figured at serial
no.14, in the disqualification petition. On receipt of the aforesaid petition,
the Speaker issued notices to the concerned 14 MLAs, on 7.12.2015
itself. The 14 MLAs belonging to the INC, were required to submit
their response(s), and thereupon to appear before the Speaker, on
14.12.2015. - E
17. It was contended on behalfofthe appellants, that the factual
position noticed above, triggered the stage for a political upmanship.
Not between the legislators of the INC and the BJP, but between two
factions of the INC. With one faction of the INC legislators, garnering
support from BJP legislators. It was alleged, that the BJP legislators, in F
order to topple the Government in p_pwer, were extending support to the
faction opposing the continuation of the Chief Minister- Nabam Tuki.
The impugned orders:
I 8. The Governor of the State of Arunachal Pradesh, according
to learned counsel, without consulting the Chief Minister- Nabam Tuki, G
and his Council of Ministers, or even the Speaker-Nabam Rebia, issued
an order dated 9. 12.2015, whereby, he preponed the 6th session of the
Assembly scheduled to be held on 14.1.2016, to 16.12.2015. The instant
order passed by the Governor, has been assailed by the appellants. A
relevant extract of the order, is reproduced below: H
52 SUPREME COURT REPORTS [2016] 6 S.C.R.

A "WHEREAS I, Jyoti Prasad Rajkhowa, the Governor ofArunachal
Pradesh. had issued an Order on 3 November, 2015 under clause
(I) of article 17-4 oftne Constitution oflndia summoning the Sixth
Legislative Assembly of Arunachal Pradesh to meet for its sixth
session at 10.00 AM on 14 January, 2016 in the Legislative
Assembly Chamber at Naharlagun:
B
WHEREAS subsequent to the issue of the aforesaid order by
me. a notice ofresolution for removal ofShri Nabam Rebia. from
the office of the Speaker of. the Arunachal Pradesh Legislative
Assembly has been received on 19 November, 2015 with a copy
endorsed to me by the notice givers namely Shri Tamiyo Taga.
c the Leader of Opposition in the said Assembly along with 12 other
Members of the Legislative Assembly:
WHEREAS the notice ofresolution for removal of the Speaker
as aforesaid has complied with the notice period of 14 days on the
4 December, 2015 (excluding the day of notice and 4 December,
D 2015 - 14 days clear notice) as required under the first proviso to
article l 79(c) of the Constitution oflndia:
WHEREAS it has been judicially held in Nipamacha Singh and
Others Vs. Secretary, Manipur Legislative Assembly and Others
[AIR 2002 Gauhati 7] as under:
E '"' 13 ... the powers to consider or to reject a motion for.removal of
the Speaker from his office did not vest in the Speaker but in the
Legislative Assembly under article 179 and 181 of the
Constitution ... "
WHEREAS in view of the above judicial order. it is a Constitutional
obligation on my part to ensure that the resolution for removal of
F
Speaker is expeditiouslv placed before the Legislative Assembly:
WHEREAS I have also received a request from the notice givers
of the resolution for removal of the Speaker that the sitting of the
sixth session of the SixthArunachal Pradesh Legislative Assembly
originally slated for 14 January, 2016 may be advanced so as to
G enable the House to urgently consider the resolution for removal
of the Speaker:
WHEREAS, the time gap between the 4 December, 2015 and
the intended date of first sitting of the sixth session i.e. l 4 January,
20 l 6 i.e. the earliest date on which the resolutions for removal of
H Speaker can be taken up for consideration by the House, is 42
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 53
AND OTHERS [JAGDLSH SINGH KHEHAR, J.]

days (including 4 December, 2015 and 14 January, 2016): A
WHEREAS any such notice ofresolution in relation to an Officer
of the Legislative Assembly (Speaker or Deputy Speaker) needs
to be expeditiously considered by the Legislative Assembly in view
of (i) past precedents in the Lok Sabha and (ii) the seriousness
and urgency accorded to such resolutions in paragraph 2 of Rule B
151 of the Rules of Procedure and Conduct of Business in the
Arunachal Pradesh Legislative Assembly and (iii) the utmost
immediacy with which the cloud cast by the notice ofresolutiun
over the continuance of the incumbent in the office of the Speaker
has to be cleared:
WHEREAS I am personally satisfied that the time gap between c
the date of compliance of the notice with the notice period
prescribed in the first proviso to article 179(c) of the Constitution
of India and the date of the intended first sitting of the ensuing
session. as computed in the aforesaid manner, is long and
unreasonable and may cause damage to the goals and ideals of D
provisions in the Constitution oflndia and the Rules of Procedure
of the House concerning speedy disposal of such resolutions:
WHEREAS I am further satisfied that, for any exercise of
advancing, the date of the sixth session under clause (I) of article
174 of the Constitution of India to a date earlier than the date
E
mentioned in the Summons dated 3'd November, 2015 for
facilitating the House to expeditiously consider resolutions for
removal of Speaker, I may not be bound by the advice of the
Council of Ministers, since the subject matter of the notice for
removal of the Speaker is not a matter, falling under the executive
jurisdiction of the Chief Minister, Arunachal Pradesh not such a F
subject matter finds a mention in the Rules of Executive Business
of the Government of Arunachal Pradesh framed under article
166 of the Constitution oflndia thereby restricting the role of the
Chief Minister in advising me in exercise of my powers under
article 174(1) of the Constitution oflndia only to the matters for
G
which the Chief Minister, under the Constitution of India, is
responsible".
AND NOW THEREFORE -
In exercise of powers conferred upon me by clause (1) of article
174 of the Constitution oflndia, I, Jyoti Prasad Rajkhowa, Governor
H
54 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of Arunachal Pradesh do herby modify the order issued by me
under the said provision of the Constitution of India on 3rd
November, 2015 summoning the Sixth Arunachal Pradesh
Legislative Assembly to meet for its sixth-session on l 4'h January,
2016 to the following extent: .
8 (i) For '14th January, 2016' read '16th December, 2015'
(ii) For ' 18th January, 2016' read '18th December, 2015'
2. Accordingly, in pursuance of the order issued by me under
clause (I) of article 174 of the Constitution of India on 3rd
November, 2015 as modified herein, the Arunachal Pradesh
Legislative Assembly shall now meet at 10.00 AM on 16th
c
December, 2015 at the Legislative Assembly Chamber at
Naharlagun.
JYOTI PRASAD RAJKHOWA
Governor"
19. It was pointed out, that the order extracted above reveals,
D
that it was prompted by a notice of resolution for the removal of the
- Speaker, coupled with the assumption, that a constitutional obligation
was cast on the Governor, to ensure that the above resolution was
expeditiously taken up for consideration. Because, any delay in taking
up the same, on the scheduled date of summoning of the 6th session of
E the House (- 14.1.2016), would" ... cause damage to the goals and ideals
of the provisions of the Constitution, besides the Conduct of Business
Rules ... ".And that, the Governor was not obliged, in the peculiar
background referred to above, to seek the advice of the Chief Minister
and his Council of Ministers. Admittedly, the Governor had issued the
above order at his own, without any aid and advice.
F
20. On the same day-9.12.2015, the Governor issued a message
under Article 175(2) inter alia fixing the resolution for the removal of
the Speaker, as the first item of the House agenda, at the first sitting of
its 6th session. A relevant extract of the same is reproduced hereunder:

G "I. The1·esolution for removal of Speaker shall be the first item
on the agenda of the House at the first sitting of the Sixth Session
of the Sixth Arunachal Pradesh Legislative Assembly;
2. As the resolution for removal of the Speaker shall be the first
item of business, at the first sitting of the Sixth Sess_ion of the
Sixth Arunachal Pradesh Legislative Assembly, the Deputy Speaker
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 55
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

shall preside over the House from the first moment of the first A
sitting of the House in accordance with provisions in article 181 ( 1)
of the Constitution oflndia;
3. The proceedings of the House on the leave, discussion and
voting on the resolution for removal of the Speaker shall be
completed at the first sitting of the session itself; B
4. The Deputy Speaker shall conduct the proceedings peacefully
and truthfully and shall communicate the results of the voting on
the resolution on the same day. The proceedings of the House on
the resolution shall be video graphed and an authenticated copy
of the video record shall also be sent to me on the same day; and
c
5. Until the session is prorogued, no Presiding Officer shall alter
the party composition in the House."
The above message of the Governor, has also been assailed by the
appellants. The message predetermined the procedure which the
Assembly was mandated to follow, particularly with reference to the
D
notice of resolution for the removal of the Speaker. The message also
e1itailed, that the " ... party composition in the House ... " would not be
altered until the 6th session of the House was prorogued. It was pointed
out, that by the above edict, the proceedings initiated by the Chief Whip
of the Congress Legislature Party under the Tenth Schedule, against 14
MLAs of the INC, would automatically be put on hold, till the 6th session E
of the House was prorogued.
Resumption of, the first sequence of facts:
21. It was pointed out, that consequent upon the above
development, a meeting of the Chief Minister and his Council of Ministers
was convened on 14.12.2015. Based on the opinion tendered by the F
Advocate General of the State of Arunachal Pradesh dated 12.12.2015,
the State Cabinet resolved, that the order of the Governor dated
9.12.2015, was violative of Article 174 read with Article 163 of the
Constitution, and Rule 3 of the 'Conduct of Business Rules'. It was
resolved, that the message of the Governor dated 9.12.2015, infringed G
Article 175 of the Constitution, read with Rule 245 of the 'Conduct of
Business Rules'. In the aforesaid view of the matter, the Speaker -
Nabam Rebia issued a letter dated 14.12.2015, bringing the aforesaid
legal position to the notice of the Governor, and requested the Governor,
to allow the House to function, in consonance with the provisions of the
H
56 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Constitution. The Governor was accordingly urged, to convene the 6th
·session of the Arunachal Pradesh Legislative Assembly, as was originally
scheduled (-for 14.1.2016). It was submitted, that the aforesaid
communication addressed by the Speaker to the Governor, was neither
responded to nor acknowledged.
B 22. It was also the case of the appellants, that the disqualification
proceedings against the 14 legislators of the JNC (initiated through the
notice dated 7.12.2015), were taken up for consideration by the Speaker
- Nabam Rebia on 14.12.2015. None of the 14 ML'..s sought to be
disqualified, responded to the notice issued to them. They did not even
enter appearance before the Speaker on thereturnable date- 14.12.2015.
c Accordingly, the Speaker deferred the disqualification proceedings, to
the following day- 15.12.2015. On 15.12.2015, a disqualification order
was passed against all the 14 MLAs of the INC, ex parte. As a natural
corollary, the constituencies from which the 14 disqualified MLAs were
elected, were declared vacant (through a notification published in the
D Arunachal Pradesh Gazette dated 15.12.2015).
23. Jt was the pointed contention of the appellants, that on the
same day, - 15. 12.2015, when the aforesaid 14 MLAs belonging to the
INC, were declared disqualified, in a purely unprecedented and
unconstitutional manner, the Deputy Speaker-Tenzing Norbu Tongdok
E quashed the order of disqualification, even though he himself had been
unseated through the disqualification order. Relevant extract of the above
order dated 15.12.2015, is reproduced hereunder:
"ARUNACHAL PRADESH LEGISLATIVE ASSEMBLY
OFFICE OF DEPUTY SPEAKER
F No.APLA/D8/68/MEM/2015 15 DECEMBER, 2015
ORDER UNDER TENTH SCHEDULE TO THE
CONSTITUTION OF JNDIA AND RULE MADE
THEREUNDER
WHEREAS the Governor of Arunachal Pradesh had issued an
G order dated 9 1h December, 2015 under article 174( I) of the
Constitution of India preponing the Sixth Session of the Sixth
Arunachal Pradesh Legislative Assembly to l 6'h December, 2015
from J 41h January, 2016;
WHEREAS the Governor of Arunachal Pradesh preponed the
H Sixth Session as aforesaid in order to enable the House to
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 57
AND OTHERS [JAGDJSH SINGH KHEHAR, J.]

expeditiously consider and dispose of a notice of Resolution for A
removal of Shri Nabam Rebia from the Office of the Speaker.
WHEREAS the Governor of Arunachal Pradesh had further issued
a message to the Arunachal Pradesh Legislative Assembly under
article 175(2) of the Constitution pflndia, of which, the following
part has significance of clipping the abuse of power of the B
incumbent Speaker.
"Until the session is prorogued the Presiding Officer shall not
alter the party composition in the House."
WHEREAS the resolution for removal of Speaker Sh Nabam
Rebia is listed as the first item of business at the first sitting of c
Sixth Session of the Legislative Assembly on the\ 6th December,
2015; '
WHEREAS the Speaker who is facing the resolution for removal
has deliberately refrained from issuing the necessary Bulletin part
II notifying the resolution and also the list of business for the
16.12.2015 including the resolution for transaction by the. House, D
despite the message of the Governor and in total defiance of the
Constitution, rules, norms and ideals thereby subverting the vary
Constitution oflndia;
WHEREAS the Deputy Speaker who was tasked by the Governor
to conduct the proceedings of the House on the resolution for E
removal of the Speaker in accordance with article 181 of the
Constitution oflndia read with relevant rules of procedure of the
House, prepared the Bulletin Part II and list of business for \6th
December, 2015 thereby conforming to the Constitution and the
mandate issued by the Governor of Arunachal Pradesh:
F
WHEREAS the Speaker, in order to escape the consequence of
the resolution of his removal slated for transaction on the 16th
December, 2015, suddenly a day before the first sitting of the
Sixth Session i.e. on the 15'h December, 20 IS disqualified following
14 MLAs by 2 Notification of even number with No.LA/LEG-
37/2015 dated the 15th December, 2015 under the Tenth Schedule G
to the Constitution oflndia:
(I) Shri Perna Khandu
(2) Shri Kumar Waii
(3) Srhi Kameng Do lo
H
58 SUPREME COURT REPORTS [2016] 6 S.C.R.

A (4) Shri Markio Tado
(5) Shri JarkarGamlin
(6) Shri P.D. Sona
(7) Shri Mutchu Mithi
(8) Shri Kamlung Mossang
B (9) Shri Phosum Khimhun
(10) Shri Wanglin Lowangdong
(11) Shri T. Wangham
(12) Shri Lombo Tayeng
(13) Shri Kalikho Pu!
c (14) Shri T.N. Thongdok

WHEREAS THE Speaker has disqualified the above 14 MLAs
without following basic procedure oflaw and justice in regard to:
(i) Receipt of petition for Disqualification.
D
(ii) Forwarding the petition for comments of the respondents.
(iii) Hearing the respondents.
WHEREAS Rule 7(7) of the Members of Arunachal Pradesh
Legislative Assembly (Disqualification on Ground of Defection)
provides as under, according to which, no MLAcan be disqualified
E
under the Tenth Schedule without affording an opportunity of
personally being heard:
" ..... neither the Speaker nor the committee shall come to any
finding that a member has become subject to disqualification
under the Tenth Schedule without affording a reasonable
F opportunity to such members to represent his case and to be
heard in person."
WHEREAS, when a notice ofresolution is staring at the face of
Speaker, he is completely incapacitated from making any order
on the membership of other MLAs when his own fate is hanging
G in balance:
WHEREAS the Speaker, as Constitutional functionary, is not vested
with omnipotent powers to cause injury to the powers of
Honourable Governor who had already issued a message as
aforesaid to maintain the integrity of party-wise composition of
the House:
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 59
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

WHEREAS the Speaker, in committing this ma la fide and perverse A
action, has not even spared the Deputy Speaker whom the
Governor had appointed to preside over the proceedings of the
House when it takes up consideration of the resolution for removal
of the Speaker:
WHEREAS a Speaker who is facing a removal resolution before 8
the House has no competence whatsoever to pass instantaneous
orders under the Tenth Schedule to manipulate a majority in favour
of him and also Speaker who has been directed to face the House
over the resolution for his own removal11as no power whatsoever
to escape his defeat by throwing out chunks of MLAs abusing his
powers.under the Tenth Schedule: c
WHEREAS the orders of the Speaker disqualifying 14 MLAs as
aforesaid squarely challenges the position of the Governor which
the Constitutio'i\ oflndia had designed him to occupy in the scheme
of Constitution:
NOW THEREFORE, D
I, Shri T.N. Thongdok, Deputy Speaker appointed by the Governor
to preside over the first sitting of the sixth session of the sixth
Arunachal Legislative Assembly, hereby quash the orders of the
Speaker and notification issued by the Secretary of the Legislative
Assembly as aforesaid disqualifying above named named fourteen E
members of the Legislative Assembly and such orders and
notifications may be deemed as non est for want of competence
on the part of the Speaker who passed the order not only for not
following constitutional and legal procedures but also for having
lost his competence to do so since a notice of resolution dated
19.11.2015 for his removal is pending against him and which is to F
come before the house on 16.12.2015.
2. The effect of this order is that all the above named 14 MLAs
continue to be members of the sixth Arunachal Pradesh Legislative
Assembly as though the order of the delinquent Speaker is ab
initio void. G
3. All the aforesaid 14 MLAs shall attend all the sessions of the
sixth Arunachal Pradesh Legislative Assembly without let or
hindrance.
4. Any authority, civil or police, obstructing their attendance of the
ensuing session shall be committing grave breach of privilege of· H
60 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the legislative assembly as also shall come directly under the
disciplinary jurisdiction of all law enforcing authorities including
the Governor.
Naharlagun
15th December 2015 T.N. Thongdok
B Deputy Speaker"
24. It was also the case of the appel !ants, that on 16.12.2015, the
Deputy Speaker conducted the proceedings of the 6th session of the
Assembly, outside the official premises of the State Assembly. lt was
submitted, that the House assembled at Techi Takar Community Hall, G
c Sector, Naharlagun. It was contended, that at the aforesaid
unconstitutional session of the Assembly (presided over by the Deputy
Speaker), the Deputy Speaker - Tenzing Norbu Thongdok, passed an
order declaring, that the erstwhile Speaker - Nabam Rebia's
announcement that the 6th session of the Assembly would not commence
on 16.12.2015, was illegal. Having so declared, the Deputy Speaker
D further ordered, that the 6th session of the Assembly would be convened
as rescheduled by the Governor, with effect from 16.12.2015. It was
also ordered, that the 6th session of the Assembly would continue upto
18.12.2015. The order passed by the Governor on 9.12.2015 was thus
reiterated, and also given effect to. When the House assembled for the
E preponed 6th session on 16.12.2015, the notice for a vote of confidence
against the Speaker was taken up for consideration. The resolution for
removal of the Speaker- Nabam Rebia, was adopted.by the Assembly
on 16.12.2015 itself. The list of business issued by the Deputy Speaker
- Tenzing Norbu Thongdok provided, that the following motions would
betaken upon 17.12.2015:
F
(i) vote of confidence of the Council of Ministers headed by
Shri Nabam Tuki -the then Chief Minister, and
(ii) expression of confidence in Kalikho Pu!, to head the new
Council of Ministers.
G The second sequence of facts:
25. It is also relevantto mention, that the Speaker- Nabam Rebia,
filed Writ Petition (C) No.7745of2015 before the Gauhati High Court,
challenging inter a/ia the Governor's order dated 9.12.2015, the
Governor's message dated 9.12.2015, the alleged holding of the preponed
H 6th session of the Assembly, outside the House on 16.12.2015, the Deputy
NABAM REBJA, AND BAMANG FELIX v. DEPUTY SPEAKER 61
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Speaker- Tenzing Norbu Thongdok'rnrder dated 15.12.2015, quashing A
the disqualification order of the 14 MLAs, belonging to the INC, and the
resolution dated 16.12.2015 adopting the resolution for removal of the
Speaker- Nabam Rebia, and its consequential notification.
26. A Single Bench of the Gauhati High Court, by an interim order
dated 17.12.2015 stayed all the aforementioned impugned decisions, till B
the n-ext date of hearing - 1.2.2016. A relevant extract of the interim
order passed by the High Court is reproduced below:
"23. The disturbing developments in the State ofArunachal Pradesh
noticed from the various steps taken since November 2015
indicates the tussle for power by opposing group and it is clear c
that the Speaker and the Deputy Speaker of the Assembly are
heading the opposite camps. Understandably the action of the
MLAs are motivated by political exigencies and a manifestation
of this can be seen from the FIR dated 20.12.2015. In such situation,
the Governor as the constitutional head. is expected to discharge
his role with dispassion and within the constitutional framework. D
But the impugned steps taken by the State's Governor which
facilitated the political battle to move in certain direction in the
tussle for power, reflects the non neutral role of the constitutional
head and this is undermining the democratic process.
xxx xxx xxx E
25. Taking all the above factors into account meanwhile, the
impugned decision(s) are ordered to be kept in abeyance until the
case is considered next. List on 1.2.2016."
A perusal of the interim order passed by the High Court, it was contended,
reveals that the High Court had entertained a primafacie view, that the F
Governor, was facilitating the political conflict between the parties towards
a definite direction, in a prejudicial manner. And also, that the Governor
had not acted in a dispassionate manner. The appellants, during the
course of hearing, left no stone unturned, to endorse the above noted
impression of the Single Bench. The decisions kept in abeyance;· by the G·
interim order extracted above, were:
(i) the order passed by the Governor dated 9.12.2015
(ii) the message of the Governor dated 9.12.2015
(iii) the order passed by the Deputy Speaker dated 15.12.2015
setting aside the disqualification of the 14 MLAs; and H
62 SUPREME COURT REPORTS [2016] 6 S.C.R.

A (iv) the resolution dated 16.12.2015, removing the Speaker.
Thereafter, based on an order obtained by the Joint Registrar (Judicial)
of the Gauhati High Court from the acting Chief Justice of the High
Court, on the administrative side, the above Writ Petition (C) No. 7745 of
2015, was placed before a different Single Bench of the High Court.
B During the course of hearing of the above writ petition on 19.12.2015,
the Governor-Jyoti Prasad Rajkhowa, and the State Government, were
impleaded as parties. Two further interlocutory applications bearing
nos. 2822 and 2823 of2015, were filed by 13 and 7 applicants respectively,
seeking impleadment in Writ Petition (C) No.7745 of2015, and were
allowed. Through the above applications, the applicants besides seeking
c impleadment, assailed the maintainability of Writ Petition (C) No.7745
of 2015. They also sought modification/vacation of the interim order
(staying the impugned decisions), dated 17.12.2015.
27. It was submitted, that when the Assembly met on 17.12.2015,
and the Government headed by the Chief Minister - Nabam Tuki was
D declared to have lost confidence of the House, Kalikho Pul, another
JNC MLA, was chosen as the new leader of the House.
28. The learned Single Bench, before whom the matter came to
be posted by the acting Chief Justice of the High Court (after the interim
order extracted above, had been passed), issued notice for modification/
E vacation of the interim order (passed by the previous Single Bench)
dated 17.12.2015. It was submitted, that without any notice to the
appellant, and without affording an opportunity of hearing to the counsel
representing the appellant, the successor Single Bench restrained
reconvening of the House till 4. l .2016.
F 29. The two MLAs belonging to the INC (- Bamang Felix and
Nyamar Karbak) also approached the High Court by filing Writ Petition
(C) No. 7998of2015. The petitioners in the aforesaid writ petition, inter
alia assailed the same decisions, as were impugned by Nabam Rebia in
Writ Petition (C) No.7745 of2015 (more or less, on the same grounds).
G The instant matter came up for hearing, before yet another Single Bench ·
of the High Co-urt. On its first date of hearing, Writ Petition (C) No. 7998
of2015 was directed to be posted for hearing on 4.1.2016, along with
the first writ petition - Writ Petition (C) No.7745of2015. Resultantly,
both the writ petitions came to be posted before the same Single Bench
(nominated by the acting Chief Justice, on 18.12.2015).
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 63
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

30. Dissatisfied with the listing of the matters, the appellant herein A
- Nabam Rebia, filed an Interlocutory Application in Writ Petition (C)
No.7745of2015, on the judicial side on 23.12.2015, seeking the recusal
of the Single Bench, nominated to hear the case by the acting Chief
Justice. Writ Petition (C) No. I 0of2016, was independently filed in the
High Court, impugning the order of the acting Chief Justice dated
B
18.12.2015 (communicated by the Joint Registrar (Judicial), after
obtaining instructions from the acting Chief JusticeJ, directing the posting
of Writ Petition (C) No.7745of2015, before a different Single Bench of
the High Cour1.
31. As already noticed above, a prayer for recusal was also made
to the learned Single Bench, before which the matter had been posted,
c
by the acting Chief Justice. The learned Single Bench, was asked to
recuse from the proceedings in Writ Petition (C) No.7745 of2015. The
acting Chief Justice of the High Court, entertained an Interlocutory
Application with a similar prayer, in his chambers on the administrative
side, and rejected the same on 4.1.2016. Writ Petition (C) No. I 0 of2016 D
was dismissed on 7.1.2016 by a Single Bench (other than the OI1e, which
had passed the interim order dated 17.12.2016, as also, other than the
one to which the acting Chief Justice had assigned Writ Petition (C) No.
7745 of 2015 for hearing - after the passing of the interim order dated
17.12.2016). Dissatisfied with the above determination, the appellant
filed Special Leave Petition (C) No.189 of 2016, before this Court. It
E
would be pertinent to mention, that the above special leave petition was
withdrawn by the petitioner on 13.1.2016.
The legal challenge, on behalf of the appellants:
32. The High Court disposed of Writ Petition (C) Nos.7745 and F
7998of2015 by a common order dated 13.1.2016. The instant order is
subject matter of challenge~ through Special Leave Petition (C) Nos.1259-
1260of2016.
33. Despite the challenges to the various orders passed by the
High Court through different petitions, it was contended on behalf of the G
appellants, that the determination of Special Leave Petitions (C)
Nos.1259-1260 of 2016 would completely and effectively, result in the
adjudication of all the issues canvassed at the hands of the appellants, in
the connected matters.
34. It was submitted on behalf of the appellants, that for an
H
64 SUPREME COURT REPORTS [2016] 6 S:C.R.

A effective adjudication of the present controversy, it is necessary to
understand the duties and responsibilities of the Governor, as envisaged
in the scheme of the ConstitLition. It was highlighted, that the position of
the Governor, should not be confused with the impression created by
Article 168 - that the State Legislature includes the Governor. It was
submitted, that the Governor cannot be considered even as an officer of
8
the House. Despite the above two express assertions, it was submitted,
that it cannot be disputed that the Governor _of a State is a part of the
State Legislature- just like the President, is a part of the Parliament. It
was asserted, that the Governor functions and operates as a bridge
between the executive and the legislature. Through an address by the
c Governor under Article 175, the executive informs the Assembly, about
the policies of the Government. The power vested with the'Governor, to
give his assent to a Bill passed by the Assembly, or to require the matter
to be retonsidered by returning the Bill to the legislature, it was pointed
out, w'ere powers which a Governor exercised beyond the precincts of
the Assembly. This function/power resting with the Governor, according
D
to learned counsel, was clearly beyond the scope oflegislative business,
conducted within the Assembly. lt was pointed out, 'that when a Governor
summons the House, he does not do so at his own will. He summons the
House, on the aid and advice of the Chief Minister and his Council of
Ministers, after due consultation with the Speaker. The only responsibility
E entrusted to the Governor, according to learned counsel, is provided for
in Article 174, inasmuch as, it is the obligation of the Governor to ensure,
that the interval between the last sitting of the previous session, and the
first sitting of the succeeding session, is not more than six months .
.35. For substantiating the propositions canvassed in the foregoing
F paragraph, reliance was first placed on Article 158, which expressly
provides, that the" ... Governor shall not be a member of either House of
Parliament or of a House of the Legislature of any State specified in the
First Schedule ... ". It was pointed out, that as a matter of abundant
caution, Article 158 also provides, that in case an incumbent member of
the Assembly (or that of the Parliament) is appointed as Governor of a
G State " ... he shall be deemed to have vacated his seat in that House on
the date on which he enters his office as Governor". Additionally, reliance
was placed on Article 163 to demonstrate, that the Governor is bound by
the aid and advice of the Chief Minister and his Council of Ministers. It
was acknowledged, that the Governor is also authorized tp act
H independently,- on his own, but only in respect of such functions, wherein
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 65
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

he is expressly authorized to do so, by or under the Constitution. It was A
acknowledged, that in such matters which the Governor considers as
·falling within his independent judgment," ... the decision of the Governor
in his discretion shall be final. .. ". And that, the exercise of such
discretion, cannot be called in question. It was however pointed out, that
such exercise ofindependentjudgment, can only be questioned by way
B
. ofjudicial review.
36. In order to demonstrate the effectiveness of the Governor as
a bridge between the executive and the legislature, reliance was placed
by learned counsel on Article 167, which provides that it would be the
duty of the Chief Minister, to communicate all decisions cifthe Council
of Ministers relating to administration of affairs of the State to the
c
Governor, as well as, proposals with reference to matters on which
legislation is contemplated. It was therefore submitted, that the intent
expressed in Article 168 should not be determined from a peripheral
reading thereof, but from the scheme envisioned by the surrounding
provisions. It was urged, that even though Article 168 provides, that D
every State Legislature "shall" consist of the Governor, the fact of the
matter is, that the Governor has no role in any legislative activity of the
House.
3 7. It was acknowledged, that the Governor was obliged to address
the Assembly, in consonance with Article 175( 1). It was however urged, E
that the Governor's address to the House, was obligated to be in
consonance with, the aid and advice of the Chief Minister and his Council
of Ministers. It was pointed out, that the same position prevailed, in the
matter of sending messages to the House under Article 175(2), which
according to learned counsel, was subject to similar aid and advice.
F
38. Inviting the Court's attention to Article 178 it was submitted,
that the instant Article is a part of Chapter III - under Part VI (which
includes Articles 178 to 189), of the Constitution. It was pointed out,
that Chapter III bears the heading - "Officers of the State Legislature".
It was pointed out, that the Speaker and the DeP.uty Speaker are the
only two officers of the State Legislative Assembly. And likewise, the G
Chairman and the Deputy Chainnan, are the only officers of the State
Legislative Council. Besides the above officers, the staff of a State
Legislative Assembly, comprises of the personnel appointed, for carrying
on ministerial responsibilities of the secretariat of the Leg-islature. It
was submitted, that no other functionary could be considered as an officer H
66 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of the State Legislature. The pointed contention oflearned counsel was,
that the Governor could not be considered, as an officer of a State
Legislative Assembly.
39. In the present sequence of submissions, learned counsel, last
of all, referred to Article 208, and urged, that the same allows every
B State Legislative Assembly to frame rules for regulating the procedure
for conducting business of the House. Having drawn the Court's attention
to sub-article (3) of Article 208, it was submitted, that the power vested
with the Governor· to make rules thereunder, was limited to
communications between the two Houses (the State Legislative
Assembly and the State Legislative Council). It was accordingly
c contended, that the framing of the above rules of procedure, should not
be confused with, the rules for carrying on the business of the House
itself. Having invited our attention to Article 163, it was asserted, that
the power vested with the Governor under Article 208 by necessary
implication, had to be exercised on the aid and advice of the Chief
D Minister and his Council of Ministers.
40. Having premised his submissions on the aforementioned
provisions, reference was made by learned counsel to Paragraph 6 of
the Tenth Schedule. Paragraph 6( I), according to learned counsel, leaves
no room for any doubt, that on the subject of disqualification of an MLA,
E the functional authority is vested only with the Speaker. It was further
submitted, that reference to Article 212 (cited in Paragraph 6(2), of the
Tenth Schedule), was for the sole purpose of grantingjudicial immunity,
to the actions taken on a disqualification motion under Paragraph 6.
Most importantly, it was pointed out, that the Governor has no role
whatsoever, on the question ofremoval ofMLAs. And as such, according
F to learned counsel, it was not open to the Governor to be concerned
with, what might or might not emerge, from proceedings conducted by
the Speaker under the Tenth Schedule.
41. It is relevant to mention, that learned counsel representing the
appellants, also made a reference to Article 361, which postulates inter
G alia, that the Governor of a State is not" ... answerable to any court for
the exercise and performance of powers and duties of his office or for
any act done or purporting to be done by him in the exercise and
performance of those powers and duties ... ". Despite the aforesaid
protection afforded to the Governor, it was submitted, that in the present
H controversy, the Governor - Jyoti Prasad Rajkhowa had moved an
NABAM REBIA, AND BAMANG FELIX v. I)EPUTY SPEAKER 67
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

application for being permitted to be arrayed as a party respondent. A
This action of the Governor, according to learned counsel, was sufficient
to infer, that the actions of the Governor were partisan. It was submitted,
that the facts of the case reveal, that the actions of the Governor, were
supportive of the BJP for purely political considerations, and that, they
were pointedly prejudicial to the interest of the INC. It was asserted,
B
that an analysis of actions of the Governor would reveal, that the
Governor was making concerted efforts towards dislodging the INC
Government, and/or weakening it by extending support to the faction of
the INC MLAs seeking the removal of the Chief Minister - Nabam
Tuki.
42. In order to support his contentions, learned counsel placed c
reliance on debates of the Constituent Assembly. With reference to
Article 163, it was submitted, that the Governor was mandated to
discharge his functions in consonance with the aid and advice of the
"Council of Ministers with the Chief Minister at the head". The only
exception to the above position was in situations, where an express D
provision of the Constitution, required the Governor to exercise his
functions in his own discretion/judgment. It would be relevant to mention,
that draft Article 143 eventually came to be renumbered as Article 163
in the Constitution. The debate highlighted, with reference to. the
concerned provision, is extracted hereunder:
E
"Shri H.V. Karnath: (C.P. & Berar: General): Mr. President, Sir,
I move:
"That in clause(]) of article 143, the words 'except in so far as
he is by or under this Constitution required to exercise his functions
or any of them in his discretion' be deleted."
F
If this amendment were accepted .by the House, this clause of,
article 143 would read thus:.-
"There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his
functions."
G
Sir, it appears from a reading of this ·clause that the Government
oflndiaAct of 1935 has been copied more or less blindly without
mature consideration. There is no strong or valid reason for giving
the Governor more authority either in his discretion or
otherwise vis-a-vis his ministers, th'an has been given to the
President in relation to his ministers. If we turn to article 61(1), H
68 SUPREME COURT REPORTS [2016) 6 S.C.R.

A we find it reads as follows:-
"There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his
functions."
When you, Sir, raised a very important issue, the other day,
B Dr. Ambedkar clarified this clause by saying that the President is
bound to accept the advice of his ministers in the exercise ofall of
his functions. But here article 143 vests certain discretionary powers
in the Governor, and to me it seems that even as it was, it was bad
enough, but now after having amended a1ticle 131 regarding
election of the Governor and accepted nominated Governors, it
c would be wrong in principle and contrary to the tenets and principles
of constitutional Government, which you are going to build up in
this country. It would be wrong I say, to invest a Governor with
these additional powers, namely, discretionary powers. I feel that
no departure from the principles of constitutional Government
D should be favoured .except for reasons of emergency and these
discretionary powers must be done away with. I hope this
amendment of mine will commend itself to the House. I move,
Sir.
xxx xxx xxx
E Shri T.T. Krishnamachari: Mr. President, I am afraid I will have
to oppose the amendment moved by my honourable Fri.end
Mr. Karnath, only for the reason that he has not understood the
scope of the article clearly and his amendment arises out of a
misapprehension.
Sir, it is no doubt true, that certain words from this article may be
F
removed, namely, those which refer to the exercise by the
Governor of his functions where he has to use his discretion
irrespective of the advice tendered by his Ministers. Actually, I
think this is more by way of a safeguard, because there are specific
provisions in this Draft Constitution which occur subsequently
G where the Governor is empowered to act in his discretion
irrespective of the advice tendered by his Council of Ministers.
There are two ways of formulating the idea underlying it. One is
to make a mention of this exception in this article 143 and
enumerating the specific power of the Governor where he can
exercise his discretion in the articles that occur subsequently, or
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 69
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

to leave out any mention of this power here and only state it in the A
appropriate article. The former method has been followed. Here
the general proposition is stated that the Governor has normally to
act on the advice of his Ministers except in so far as the exercise
of his discretions covered by those articles in the Constitution in
which he is specifically empowered to act in his discretion. So
8
long as there are articles occurring subsequently in the Constitution
where he is asked to act in his discretion, which completely cover
all cases of depa11ure from the normal practice to which I see
my honourable Friend Mr. Karnath has no objection, I may refer
to article 188, 1see no harm in the provision in this article being as
it is. If it happens that this House decides that in all the subsequent c
articles, the discretionary power should not be there, as it may
conceivably do, this pa11icular provision will be ofno use and will
fall into desuetude. The point that my honourable Friend is trying
to make, while he concedes that the discretionary power of the
Governor can be given under article 188, seems to be pointless. If
D
it is to be given in article 188, there is no harm in the mention of it
remaining here. No harm can arise by specific mention of this
exception of article 143. Therefore, the serious objection that
Mr. Karnath finds for mention of this exception is pointless. I
therefore think that the article had better be passed without any
amendment. If it is necessary for the House either to limit the E
discretionary power of the Governor or completely do away with
it, it could be done in the articles that occur subsequently where
specific mention is made without which this power that is mentioned
here cannot at all be exercised. That is the point that I would like
to draw the attention of the House to and I think the article had
better be passed as it is.
F
Dr. P.S. Deshmukh: (C.P. & Berar: General): Mr. President, Mr.
T. T. Krishnamachari has clarified the position with regard to this
exception which has been added to clause (1) of article 143. lf
the Governor is, in fact, going to have a discretionary power, then
it is necessary that this clause which Mr. Karnath seeks to omit G
must remain.
Sir, Besides this, 1 do not know if the Drafting Committee has
deliberately omitted or they are going to provide it at a later stage,
and I would like to ask Dr. Ambedkar whether it is not necessary
to provide for the Governor to preside at the meetings of the H
70 SUPREME COURT REPORTS [2016) 6 S.C.R.

A Council ofMinisters. I do not find any provision here to this effect.
Since this article 143 is a mere reproduction of section 50 of the
Government of India Act, 1935, where this provision does exist
that the Governor in his discretion may preside at the meetings of
the Council of Ministers, I think this power is very necessary.
Otherwise, the Ministers may exclude the Governor from any
B
meetings whatever and this power unless specifically provided
for, would not be available to the Governor. l would like to draw
the attention of the members of the Drafting Committee to this
and to see if it is possible either to accept an amendment to article
143 by leaving it over or by making this provision in some other
c part. I think this power of the Governor to preside over the meetings
of the Cabinet is an essential one and ought to be provided for.
xxx xxx xxx
Pandit Hirday Nath Kunzru: (United Provinces: General): Mr.
President I should like to ask Dr. Ambedkar whether it is
D necessary to retain after the words "that the Governor will be
aided and advised by his Ministers". the words "except in regard
to certain matters in respect of which he is to exercise his
discretion". Supposing these words, which are reminiscent of the
old Government oflndiaAct and the old order, are omitted, what
harm will be done? The functions of the Ministers legally will be
E only to aid and advice the Governor. The article in which these
words occur does not lay down that the Governor shall be guided
by the advice of his Ministers but it is expected that in accordance
with the Constitutional practice prevailing in all countries where
responsible Government exists the Governor will in all matters
F_ accept the advice of his Ministers. This does not however mean
that where the Statute clearly lays down that action in .regard to
specified matters may be taken by him on his own authority this
article 143 will stand in his way:
xxx xxx ' xxx
G I should like to say one word more before I close. If article 143 is
passed in its present form, it may give rise to misapprehensions of
the kind that my honourable Friend Dr. Deshmukh seemed to
be labouring under when he asked that a provision should be
inserted entitling the Governor to preside over the meetings of the
Council of Ministers. The Draft Constitution does not provide for
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 71
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

this and I think wisely does not provide forth is. It would be contrary A
to the traditions of responsible government as they have been
established in Great Britain and the British Dominions, that the
Governor or the Governor-General should, as a matter of right,
preside over the meetings of his cabinet. All that the Draft
Constitution does is tcr lay on the Chief Minister the duty of
B
informing the Governqr of the decisions come to by the Council
of Ministers in regard to administrative matters and the
legislative programme of the government. In spite of this, we see
. thatthe article 143, as it is worded, has created a misunderstanding
in the mind of a member like Dr. Deshmukh who takes pains to
follow every article of the Constitution with care. This is an c
additional reason why the discretionary power of the Governor
should not be referred to in article 143. The speech of my Friend
Mr. Krishnamachari does not hold out the hope that the suggestion
that I have made has any chance ofbe.ing accepted. Nevertheless,
I feel it my duty to say that the course proposed by Mr. Karnath is
D
better than what the Drafting'. Sub-Committee seem to approve.
xxx xxx xxx
Shri Alladi Krishnaswami Ayyar: (Madras: General): Sir, there is
really no difference between those who oppose and those who
approve the amendment. In the first place, the general principle is
laid down in article 143 namely, the principle of ministerial
E
responsibility, that the Governor in the various spheres of executive
activity should act on the advice of his ministers. Then the article
goes on to provide "except in so far as he is by or under this
- Constitution required to exercise his functions or any of them in
his discretion. So long as there are article in the Constitution which F
enable the Governor to act in his discretion and in certain
circumstances, it may be, to over-ride the cabinet ·or to refer to
the President, this article as it is framed is perfectly in order. If
· 1ater on the House comes to the <:onclusion that those articles
which enable the Governor to act in his discretion in specific cases
should be deleted, it will be open to revise this artic;le. But so long G
as there are later articles which pennit the Governor to act in his
discretion and not on ministerial responsibility, the article as drafted
is perfectly in order.
Shri H.V. Pataskar: (Bombay: General): Sir, article 143 is perfectly
H
72 SUPREME COURT REPORTS [2016] 6 S.C.R.

A clear. With regard to the amendment of my honourable Friend
Mr. Karnath various points were raised, whether the Governor is
to be merely a figure-head, whether he is to be a constitutional
head only or whether he is to have discretionary powers. To my
mind the question should be looked at from and entirely different
point of view. Article 143 merely relates to the functions of the
B
ministers. It does not primarily relate to the powers and functions
of a Governor. It only says:
"There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his
functions."
c Granting that we stop there, is it likely that any complications will
arise or that it will interfere with the discretionary powers which
are proposed to be given to the Governor? In my view article 188
is probably necessa1y and I do not mean to suggest for a moment
that the Governo(s powers to act in an emergency which powers
D are given under article 188, should not be there. My point is this,
whether if this Provision, viz., "except in so far as he is by or
under this Constitution required to exercise his functions or any of
them in his discretion", is not there, is it going to affect the powers
that are going to be given to him to act in his discretion under
article 188? I have carefully listened to my honourable Friend and
E respected constitutional lawyer. Mr. Alladi Krishnaswami Ayyer,
but I was not able to follow why a provision like this is necessary.
He said that instead later on, while considering article 188, we
might have to say "Notwithstanding anything contained in article
143." In the first place to my mind it is not necessary. In the next
F place, even granting that it becomes necessary at a later stage to
make provision in mticle 188 by saying "notwithstanding anything
contained in article 143", it looks so obnoxious to keep these words
here and they are likely to enable certain people to create a sort
ofunnecessa1y and unwarranted prejudice against ce1tain people.
Article 143 primarily relates to the functions of the ministers. Why
G is it necessary at this stage to remind the ministers of the powers
of the Governor and his functions, by tel Iing them that they shall
not give any aid or advice in so far as he, the Governor is required
to act in his discretion? This is an article which is intended to
, define the powers and functions of the Chief Minister. At that
H point to suggest this, looks like lacking in courtesy and politeness.
NABAM REBIA, AND 13AMANG FELIX v. DEPUTY SPEAKER 73
AND OTHERS [JAGDISH· SINGH KHEHAR, J.]

Therefore I think the question should be considered in that way. A
The question is not whether we are going to give discretionary
powers to the Governors or not. The question is not whether he is
to be merely a figure-head or otherwise. These are questions to
be debated at their proper time and place. When we are
considering article 143 which defines the functions of the Chief
B
Minister it looks so awkward and unnecessary to say in the same
article "except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his discretion."
Though I entirely agree that article 188 is absolutely necessary 1
suggest that in this article 143 these words are entirely.unnecessary
and should not be there. Looked at from a practical point of view c
this provision is misplaced and it is not courteous, nor polite, nor
justified nor relevant. I therefore suggest that nothing would be
lost by deleting these words. I do not know whether my suggestion
would be acceptable but I think it is worth being considered from
a higher point of view.
D
xxx xxx xxx
The Honourable Dr. B.R. Ambedkar: Mr. President, Sir, I did not
think that it would have been necessary for me to speak and take
part in this debate after what my Friend, Mr. T. T. Krishnamachari,
had said on this amendment of Mr. Karnath, but as my
Friend, Pandit Kunzru, pointedly asked me the question and E
demanded a reply, I thought that out of cou11esy I should say a
few words. Sir, the main and the crucial question is, should the
Governor have discretionary powers? It is that question which is
the main and the principal question. After we come to some decision
on this question, the other question whether the words used in the F
last part of clause (I) of article 143 should be retained in that
article or should be transferred somewhere else could be usefully
considered. The first thing, therefore, that I propose to do so is to
devote myself of this question which, as I said, is. the crucial
question. It has been said in the course of the debate that the
retention of discretionary power in the Governor is contrary to G
responsible government in the provinces. It has also been said
that the retention of discretionary power in the Governor smells
of the Government of India Act, 1935, which in the main was
undemocratic. Now, speaking for myself, I have no doubt in my
mind that the retention in or the vesting the Governor with certain H
74 SUPREME COURT REPORTS [2016] 6 S.C.R.

A discretionary powers is in no sense contrary to or in no sense a
negation ofresponsible government. I do not wish to rake up the
point because on this point I can very well satisfy the House by
reference to the provisions in the Constitution of Canada and the
Constitution of Australia. I do not think anybody in this House
would dispute that the Canadian system of government is not a
B
fully responsible system of government, nor will anybody in this
House cha Ilenge that the Australian Government is not a
responsible form of government. Having said that, I would like to
read section 55 of the Canadian Constitution.
"Section 55.-Where a Bill passed by the Houses of Parliament
c is presented to the Governor-General for the Queen's assent, he
shall, according to his discretion, and subject to provisions of this
Act, either assent thereto in the Queen's name, or withhold the
Queen's assent or reserve the Bill for the signification of the
Queen's pleasure."
D xxx xxx xxx
The Honourable Dr. B. R. Ambedkar: I think he has misread the
article. I am sorry I do not have the Draft Gonstitution with me.
"Except in so far as he is by or under this Constitution," those are
the words. If the words were "except whenever he thinks that he
should exercise this power of discretion against the wishes or
E
against the advice of the ministers", then I think the criticism made
by my honourable Friend Pandit Kunzru would have been valid.
The clause is a very limited clause; it says: "except in so far as he
is by or under this Constitution". Therefore, article 143 will have
· to be read in conjunction with such other articles which specifically
F reserve the power to the Governor. It is not a general clause
giving the Governor power to disregard the advice of his ministers
in any matter in which he finds he ought to disregard. There, I
think, lies the fallacy of the argument of my honourable Friend,
Pandit Kunzru.
G Therefore, as I said, having stated that there is nothing incompatible
with the retention of the discretionary power in the Governor in
specified cases with the system of responsible Government, the
only question that arises is, how should we provide for the mention
of this discretionary power? It seems to me that there are three
ways by which this could be done. One way is to omit the words
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 75
AND OTHERS [JAGDISH SlNGH KHEHAR, J.)

from article 143 as my honourable Friend, Pandit Kunzru, and A
others desire and to add to such articles as 175, or 188 or such
other provisions which the House may hereafter introduce, vesting
the Governor with the discretionary power, saying notwithstanding
article 143, the Governor shall have this or that power. The other
way would be to say in article 143, ''that except as provided in
B
articles so and so specifically mentioned-articles 175, 188, 200 or
whatever they are". But the point I am t1ying to submit to the
House is that the House cannot escape from mentioning in some
manner that the Governor shall have discretion.
Now the matter which seems to find some kind of favour with
my honourable Friend, Pandit Kunzru and those who have spoken c
in the same way is that the words should be omitted from here
and should be tra1isferred somewhere else or that the specific
articles should be mentioned in article 143. It seems to me that
this is a mere method of drafting. There is no question of substance
and no question of principle. I personally myself would be quite D
willing to amend the last portion of clause (I) of ai1icle 143 if I
knew at this stage what are the provisions that this Constituent
Assembly proposes to make with regard to the vesting of the
Governor with discretionary power. My difficulty is that we have
not as yet come either to article 175 or 188 nor have we exhausted
all the possibilities of other provisions being made, vesting the E
Governor with discretionary power. If I knew that, I would very
readily agree to amend article 143 and to mention the specific
article, but that cannot be done now. Therefore, my submission is
that no wrong could be done ifthe words as they stand in article
143 remain as they are. They are ce11ainly not inconsistent. F
Shri H. V. Karnath: Is there no material difference between article
61(1) relating to the President vis-a-vis his ministers and this
article?
The Honourable Dr. B.R. Ambedkar: Of course there is because
we do not want to vest the President with any discretionary power.
G
Because the provincial Governments are required to work in
subordination to the Central Government, and therefore, in order
to see that they do act in subordination to the Central Government
the Governor will reserve certain things in order to give the
President the opprn1unity to see that the rules under which the
provincial Governments are supposed to act according to the
76 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Constitution or in subordination to the Central Government are
observed.
Shri H.V. Karnath: Will it not be better to specify certain articles
in the Constitution with regard to discretionary powers, instead of
conferring general discretionary powers like this?
8 The Honourable Dr. B.R. Ambedkar: I said so, that I would very
readily do it. I am prepared to introduce specific articles, if I
knew what are the articles which the House is going to incorporate
in the Constitution regarding vesting of the discretionary powers
in the Governor.
Shri H.V. Karnath: Why not hold it over?
c
The Honourable Dr. B.R. Ambedkar: We can revise. This House
is perfectly competent to revise article 143. If after going through
the whole of it, the House feels that the better way would be to
mention the articles specifically, it can do so. It is purely
a logomachy."
D
It is not necessary for us to summarise any inferences or conclusions,
from the above debate, as the same are apparent from the suggestions
and responses, highlighted above.
43. Reliance was then placed on the decision rendered by a
Constitution Bench of this Court in Sam sher Singh v. State of Punjab 1 •
E
The question that arose for consideration in the above case was; whether
the Governor as a constitutional head of the State, could exercise powers
or functions ofappointment and removal of members of the subordinate
judicial service, personally? The contention of the State Government
was, that the Governor was obliged to exercise powers of appointment
F and removal, conferred on him by or under the Constitution, like the
other executive power of the State Government, only on the aid and
advice of the Council of Ministers, and not personally. As against the
above stance, the appellants before this Court placed reliance on the
decision in Sardari Lal v. Union of India', wherein this Court had held,
that the President or the Governor, as the case may be, on being satisfied
G
would make an order under Article 311 (2), and more particularly, under
proviso (c) thereof. It was further held, that the satisfaction of the
President or the Governor, in the above matter, was his "personal
satisfaction". It was therefore, the contention of the appellants before
I (1974)2SCC831
H ' (1971) l sec 411
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 77
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

this Court, in the above case, that in exercise of powers vested with the A
Governor under Article 234, the appointment/termination of subordinate
judges was to be made by the Governor in exercise of his "personal
discretion". It would also be relevant to mention, that the Samsher Singh
case' was decided by a seven-Judge Bench, which examined the
correctness of the decision rendered in the Sardari Lal case~. While
B
debating the issue, this Cou1t in the Sam sher Singh case', examined the
distinction between Articles 74 and 163, and held as under:
"16. It is noticeable that though in Article 74 it is stated that there
shall be a Council of Ministers with the Prime Minister at the
head to aid and advise the President in the exercise of his functions,
there is no provision in Article 74 comparable to Article 163 that c
the aid and advice is except in so far as he is required to exercise
his functions or any of them in his discretion.
17. It is necessary to find out as to why the words 'in his discretion'
are used in relation to some powers of the Governor and not in
the case of the President. D
18. Article 143 in the Draft Constitution became Article 163 in
the Constitution. The Draft Constitution in Article 144(6) said that
the functions of the Governor under that article with respect to
the appointment and dismissal of Ministers shall be exercised by
him in his discretion. Draft Article 144(6) was totally omitted when E
Article 144 became Article 164 in the Constitution, Again Draft
Article 153(3) said that the functions of the Governor under clauses
(a) and (c) of clause (2) ofthe article shall be exercised by him in
his discretion. Draft Article 153(3) was totally omitted when it
became Article 174 ofour Constitution. Draft A1ticle 175 (proviso)
said that the Governor "may in his discretion return the Bill together F
with a message requesting that the House will reconsider the Bill".
Those words that "the Governor may in his discretion" were
omitted when it became Article 200. The Governor under
Article 200 may return the B ii I together with a message requesting
that the House will reconsider the Bill. Draft Article 188 dealt
G
with provisions in case of grave emergencies. Clauses (1) and (4)
in Draft Article 188 used the words "in his discretion" in relation
to exercise of power by the Governor. Draft Article 188 was totally
omitted. Draft Article 285(1) and (2) dealing with composition
and staff of Public Service Commission used the expression "in
H
78 SUPREME COURT REPORTS [2016] 6 S.C.R.

A his discretion" in relation to exercise of power by the Governor in
regard to appointment of the Chairman and Members and making
of regulation. The words "in his discretion" in relation to exercise
of power by the Governor were omitted when it became
Article 316. In Paragraph 15(3) of the Sixth Schedule dealing with
annulment or suspension of Acts or suspension of Acts and
B
resolutions of District and Regional Councils it was said that the
functions of the Governor under the Paragraph shall be exercised
by him in his discretion. Sub-paragraph 3 of Paragraph 15 of the
Sixth Schedule was omitted at the time of enactment of the
Constitution.
c 19. It is, therefore, understood in the background of these illustrative
draft articles as to why Article 143 in the Draft Constitution which
became Article 163 in our Constitution used the expression "in
his discretion" in regard to some powers of the Governor.
20. Articles where the expression "acts in his discretion" is used
D in relation to the powers and functions of the Governor are those
which speak of special responsibilities of the Governor. These
articles are 371A(l)(b), 371A(l)(d), 371A(2)(b) and 371A(2)(f).
There are two paragraphs in the Sixth Schedule, namely, 9(2) and
18(3) where the words "in his discretion" are used in relation to
certain powers of the Governor. Paragraph 9(2) is in relation to
E determination ofamount ofroyalties payable by licensees or lessees
prospecting for, or extracting minerals to the District Council.
Paragraph 18(3) has been omitted with effect from January 21,
1972. .
xxx xxx xxx
F 30. In all cases in which the President or the Governor exercises
his functions conferred on him by or under the Constitution with
the aid and advice of his Council of Ministers he does so by making
rules for convenient transaction of the business of the Government
oflndia or the Government of the State respectively or by allocation
G among his Ministers of the said business, in accordance with
A11icles 77(3) and 166(3) respectively. Wherever the Constitution
requires the satisfaction of the President or the Governor for the
exercise of any power or function by the President or the Governor,
. as the case may be, as for example in Articles 123, 213, 311 (2)
proviso(c), 317, 352(1), 356 and 360 the satisfaction required
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY: SPEAKER 79
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

by the Constitution is not the personal satisfaction of the President A
or of the Governor but is the satisfaction of the President or of the
Governor in the constitutional sense under the Cabinet system of
Government. The reasons are these. It is the satisfaction of the
Council of Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions. Neither
B
Article 77(3) nor Article 166(3) provides for any delegation of
power. Both Articles 77(3) and 166(3) provide that the President
under Article 77(3) and the Governor under Article 166(3) shall
make rules forthe more convenient transaction of the business of
the Government and the allocation of business among the Ministers
of the said business. The Rules of Business and the allocation c
among the Ministers of the said business all indicate that the
decision of any Minister or officer under the Rules of Business
made under these two articles viz., Article 77(3) in the case of
the President and Article 166(3) in the case of the Governor of
the State is the decision of the President or the Governor
D
respectively."
44. Based on the determination rendered by this Court in the
Samsher Singh case 1, it was submitted, that all functions discharged by
the Governor, Jou Id have to be based on the aid and advice of the
Council of Ministers (with the Chief Minister as the head), and in the
instant case, it is apparent, that the Governor had acted on his own, E
while issuing the order dated 9.12.2015, for summoning the House for
16.12.2015, under Article 174. It was pointed out, that the Governor in
the above order had himself recorded, that " ... I may not be bound by
the advice of the Council of.Ministers ... "and had also expressed therein,
" ... it is a constitutional obligation on my part to ensure that the resolution F
for removal of the Speaker is expeditiously placed before the Legislative
Assembly ... ". And likewise, the message of the Governor dated
9.12.2015, directing that the composition of the House should not be
changed, and the manner in which the business of the House was to be
conducted when it assembled on 16.12.2015, was issued without any aid
and advice. G
45. Based on the conclusions recorded in the Samsher Singh case 1,
it was contended, that the disqualification process contemplated under
the Tenth Schedule, is of no concern, of the Governor. While, it was
acknowledged, that the Tenth Schedule was introduced into the
H
80 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Constitution, to maintain and sustain the process of democratic
governance, and therefore, the same could not be put on a backburner
or suspended. Learned counsel was emphatic in his submission, that the
Governor has no role in the disqualification process contemplated under
the Tenth Schedule. And the Speaker alone, has the authority to effectuate
in his exclusive discretion, the schedule which needed to be adopted, in
B
the process of disqualification ofMLAs. As such, it was asserted, that
the fluidity of the democratic process, could not be treated as some kind
of justification, for the Governor's order and message dated 9.12.2015.
46. Learned senior counsel also contended, that all actions of the
Governor, ought to be in conformity with the aid and advice tendered to
c him by the Council of Ministers and the Chief Minister, except when
mandated otherwise. It was submitted, that where such an express
discretion is not provided for, by or under a constitutional provision, the
Governor is precluded from exercising his own discretion. Illustratively,
he invited our attention to Articles 371-A(1 )(b ), 371-A( I)( d), 37 l-A(2)(b)
D and 371-A(2)(t), wherein the Articles themselves postulate that the
Governor would discharge his functions in his individual discretion/
judgment. Reliance in this behalf, was placed on PU Myllai Hlychho v.
State of Mizoram'. It was submitted, that similar dis9retion has also
been vested with the Governor under the provisions of the Fifth and the
Sixth Schedules to the Constitution. In this behalf, reference was made
E to State ofMeghalaya v. KA Brhyien Kurkalang", Bhuri Nath v. Sate of
Jammu & Kashmir', and Samatha v. State of A.P. 6 • Illustratively,
reference was also made to Articles 167, 200 and 356 wherein the
Governor is presumed to exercise his powers at his own discretion,
because the above provisions cannot be construed otherwise. It was
F accordingly asserted, that individual discretion could be exercised by the
Governor, only when the Governor was so expressly authorized by a
constitutional provision, to exercise his discretion at his own. And not
otherwise.
47. It was pointed out, that the functions of the office of the
G Governor vis-a-vis the State Legislature, are coruparable to those of the
President with reference to the Parliament and the Central Government.
In order to highlight the contours of the duties and responsibilities of the
' (2005J 2 sec n
• (1972) 1 sec 148
' (1997) 2 sec 745
H '(1997)8SCCl91
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 81
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Governor, and the extent to which he can participate in the legislative A
process, reliance was placed on a treatise by M.N Kaul and S.L. Shakdher
- "Practice and Procedure of Parliament", (5th Edition), published by
the Lok Sabha Secretariat. In order to highlight the extent of the
Governor's power and authority, on the subject of summoning the
Assembly, reference was made to the following position narrated in
B
Chapter IX, which bears the heading-._"Summoning, Prorogation of the
Houses of Parliament and the Dissolution of the Lok Sabha":
"Summoning of Lok Sabha-
The power to summon Lok Sabha is vested in the President. He
exercises this power on the recommendation of the Prime Minister c
or the Cabinet. He may make informal suggestions to the Prime
Minister as to the more convenient date and time of summoning
the House, but the ultimate advice in this matter rests with the
Prime Minister.
In West Bengal consequent on the resignation of eighteen D
members, inctuding one Minister, from the ruling United Front on
6 November, 1967, prima facie doubts arose about majority support
to the Government in the Legislative Assembly. The Governor
desired that the Assembly be summoned on 23 November, so that
a confidence vote might be taken, but the Chief Minister said that
he would call the Assembly into session on 18 December, as E
scheduled. Thereupon, the Governor dismissed the Ministry on
21 November.
The crisis in West Bengal, as observed by Speaker Reddy, was
not unavoidable, for the Governor need not have precipitated
matters by insisting on the Chief Minister to convene the Assembly F
earlier than scheduled, when the interval between the two dates
was only of a few days.
In a Resolution adopted at the Conference of Presiding Officers,
it was recommended that the Government of India should, in the
light of the following observations, take urgent and suitable steps G
in regard to the powers of Governors to summon or prorogue the
Legislatures and to dismiss Ministries:
That a Governor shall summon or prorogue the Legislature on the
advice of the ChiefMinister. A convention shall be developed that
the Chief Minister may fix the dates of summoning or prorogation H
82 SUPREME COURT REPORTS [2016] 6 S.C.R.

A after consulting the Presiding Officer concerned. The Governor
may suggest an alternative date but it shall be left to the Chief
Minister or the Cabinet to revise their decision or not. Where,
however, there is undue delay in summoning a Legislative
Assembly and the majority of members of the Legislative Assembly
desire to discuss a Motion of No-confidence in a Ministry and
B
make a request to that effect in writing to the Chief Minister, the
ChiefM inister shal I advise the Governor to summon the Assembly
within a week of such request.
The proposal to summon Lok Sabha is initiated by the Minister of
Parliamentary Affairs (and by the Leader of the House in case
c _the Prime Minister is not the Leader of the House) and submitted
to the Prime Minister, after an informal consultation with the
Speaker in regard to the date of commencement and the duration
of the session. The Prime Minister may agree with the suggestion
or refer it to the Cabinet. The proposal as finally agreed to by the
D Prime Minister or the Cabinet is formally submitted to the Speaker.
If the Speaker also agrees (in the case of a rare disagreement, he
may refer the matter back to the Prime Minister for
reconsideration), he directs the Secretary-General to obtain the
order of the President to summon Lok Sabha on the date and time
specified. After the President has signed the order, the Secretariat
E notifies it in the Gazette Extraordinary and issues a press
communique for wider publicity in the Press as well as over the
All India Radio and Doordarshan."
And from ChapLer XLI under the title - "Parliament and the States",
our attention was invited to the following narration:
F
"Prorogation of the Assembly
As regards prorogation, the Governor should normally act on the
advice of his Council of Ministers. Where a notice ofno-confidence
against his Ministry is pending in the Assembly, the Governor should
G first satisfy himself that the notice is not frivolous and is a genuine
exercise of the parliamentary right of the Opposition to challenge
the Government's majority. If so satisfied, the Governor should
ask the Chief Minister to face the Assembly and allow the motion
to be debated and voted upon. To prorogue the Assembly otherwise
would amount to avoidance of responsibility of the Council of
H Ministers to the Assembly.
NABAM REBJA, AND BAMANG FELIX v. DEPUTY SPEAKER 83
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

If an Assembly or Legislature has been prorogued in a State, the A
matter may be raised in the Lok Sabha and the Speaker may, in
certain circumstances, allow a discussion thereon.
Dissolution of the Assembly
Normally a Governor should exercise the power of dissolution on
the advice of the Council of Ministers. If a Chief Minister who B
enjoys majority support advises dissolution, the Governor must
accept the advice, but if he advises dissolution after losing his
majority, the Governor need accept his advice only ifthe Ministry
suffers a defeat on a question of major policy and the ChiefMinister
wishes to appeal to the electorate fora mandate on that policy. In
the case of a Chief Minister heading a single party Government
c
which has been returned by the electorate in absolute majority, if
the ruling party loses its majority because of defection by at least
one-third of its members and the Chief Minister recommends
dissolution so as to enable him to make a fresh appeal to the
electorate, the Governor may grant a dissolution. The mere fact D
that some members of the pmty·have defected does not necessarily
prove that the pa1ty has lost the confidence of the electorate. lf
there is a no-confidence motion against a Ministry and the chief
Minister, instead of facing the Assembly, advises the Governor to
dissolve the Assembly, the Governor need not accept such advice,
but should ask the ChiefMinisterto get the verdict of the Assembly E
on the no-confidence motion.
In a case where the Chief Minister recommends dissolution of
the Assembly when the Budget has not been voted and the Ministry
claims majority support, the Ministry in such a situation should
face the Assembly and get the Budget passed before seeking F
dissolution for whatever reason. If, on the other hand, there is·
reason to believe that the Chief Minister no longer commands
majority support, it is clearly open to the Governor to take steps to
ascertain if it is possible to install another Minist1y which is able to
command majority support and get the Budget passed. Failing
G
both, the Governor has no alternative except to make a report to
the President under article 356 because Parliament alone could
then sanction appropriation for canying on the administration of
the State.
A Governor is not bound to accept the advice ofa Chief Minister
H
84 SUPREME COURT REPORTS [2016] 6 S.C.R_.

A to dissolve the Assembly ifthe Chief Minister has lost the majority
support."
48. In order to appreciate and effectively interpret Article 174, it was
submitted, that it is necessary to examine draft Article 153 drawn by the
Drafting Committee. The same is reproduced below:
B "153. Sessions of the State Legislature, propagation and
dissolution.-(!) The House or Houses of the Legislature of the
State shall be summoned to meet twice at least in every year, and
six months shall not intervene between their last sitting in one
session and the date appointed for their first sitting in the next
c session.
(2) Subject to the provisions of this article, the Governor may,
from time to time -
(a) summon the Houses or either House to meet at such time and
place as he thinks fit;
D
(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.
(3) The functions of the Governor under sub-clauses (a) and (c)
of clause (2) of this article shall be exercised by him in his
E discretion."
In the written comments submitted to draft Article 153, Jayaprakash
Narayan suggested, that clause (3) of Article 153 should be deleted. It
was his submission, that there was no reason why the Governor in his
discretion, should be permitted to summon or dissolve the House, when
F no such discretionary power was being extended to the President (-with
regard to summoning and dissolution, of the Parliament). Another reason
expressed by him for deleting the aforesaid clause (3) was, the changed
position of selection of Governors, whereby Governors are to be nominated
by the President, instead of being elected, as hitherto before. When
draft Article 153 came up for debate, Mohd. Tahir suggested, addition of
G the following words at the end of sub-clause (c) of clause (2) - "If the
Governor is satisfied that the administration is failing and the Ministry
has become unstable". It was canvassed, that merely because a Governor
did not subscribe to the views of the majority party, he should not have
the discretion to dissolve the House. It was asserted, that there could be
H no other reason forthe dissolution of a House, except mal-administration
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 85
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

and instability of the Government. It was therefore, that Dr. B.R. A
Ambedkar moved, that clause (3) of draft Article 153 be omitted, as the
same was inconsistent with the scheme of a "constitutional" Governor.
When put to vote, the amendment suggested by Mohd. Tahir was rejected,
and the one suggested by Dr. B.R. Ambedkar was adopted. The above
draft Article was renumbered as Article 174 of the Constitution.
B
49. Based on a collective reading of draft Article 153, and Article
174 of the Constitution, according to learned counsel, it was apparent
that the original intention of the Constituent Assembly, to vest personal
discretion with the Governor, for summoning, proroguing and dissolving
. the House, was overruled. The above historical background, it was
urged, should not be overlooked, and that, Article 174 should be interpreted c
in a manner as would exclude the personal discretion of the Governor, in
the matter of summoning, proroguing or dissolving the House(s) of the
State Legislature, in consonance with the obvious intention of the framers
of the Constitution. Learned counsel for the appellants, suggested while
concluding, that the Governor in the present case, having no discretion D
to unilaterally sµmmon the Assembly, having done so, while passing the
order dated 9.12.2015, had acted unconstitutionaJly. Consequently,
according to learned counsel, all steps taken by the Assembly, pursuant
to the order dated 9.12.2015 were liable to be set aside, as unconstitutional
and void.
E
50. The appellants also assailed the validity of the message of the
Governor, dated 9.12.2015. In order to demonstrate the contours of the
authority of the Governor under Article 175, it was pointed out, that the
precursor to Article 175, was Section 63 of the Government of India
Act, 1935, which is extracted below:
F
"63. Right of Governor to address, and send messages to,
Chambers.-(!) The Governor may in his discretion address the
Legislative Assembly or, in the case of a Province having a
Legislative Council, either Chamber of the Provincial Legislature
or both Chambers assembled together, and may for that purpose
require the attendance of members. G
(2) The Governor may in his discretion send messages to the
Chamber or Chambers of the Provincial Legislature, whether with
respect to a Bill then pending in the Legislature or otherwise, and
a Chamber to whom. any message is so sent shaJI with aJI
H
86 SUPREME COURT REPORTS [2016] 6 S.C.R.

A convenient dispatch consider any matter which they are required
by the message to take into consideration."
Referring to the words "in his discretion" used in sub-section (2)
of Section 63, it was submitted, that Article 175 vests no such discretion,
with the Governor. It was therefore contended, that the framers of the
B Constitution, did not intend to confer any discretion with the Governor, in
the matter of sending messages (envisaged under Article 175).
Accordingly, it was submitted, that no authority is vested with the Governor
under Article 175(2), to send messages in respect of the functioning of
the House, at his own. It was pointed out, that there was no question of
.. any right being vested with the Governor, to interfere with the legislative
C · autonomy of the House, by addressing a message to the House under
Article 175. It was submitted, that the message of the Governor dated
9.12.2015, was beyond the purview of Article 175(2), and therefore,
was liable to be declared unconstitutional.
51. It was also asserted, that the message of the Governor dated
D 9.12.2015, contained directions to the House. The aforesaid directions,
according to learned counsel, would not fall .within the purview of
messages contemplated under Article 175(2). It was pointed out, that
the 'Conduct of Business Rules' framed under Article 208, assigned no
such role to the Governor. A Governor, according to learned counsel,
E cannot determine or interfere with, any issue with reference to the conduct
of business, within the Legislative Assembly. In support of the above
proposition, reliance was placed on Rule 21, of the 'Conduct of Business
Rules', which is extracted below:
"Arrangement of Business, Provisional Programme and List of
F Business.
(a) Arrangement of Business:
21. Arrangement of Govt. business. On days allotted for the
transaction of Government business, such business shall have
precedence and the Secretary shall arrange that business In such
G order as the Speaker may, after consultation with the Leader of
the House, determine:
Provided that such order of business shall not be varied on the
day that business is set down for disposal unless the Speaker is
satisfied that there is sufficient ground for such variation."
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 87
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Based on Rule 21, it was submitted, that a Governor has no right A
to determine the agenda of the business of the House. Or even, the
sequence in which the business of the House, was to be conducted. To
the above extent, it was submitted, that the message of the Governor
dated 9.12.2015, was not only unconstitutional, but also violative of Rule
21. It was therefore submitted, that it was not open to the Governor, to
B
have directed the House, through his message dated 9.12.2015, to take
up the resolution for removal of the Speaker, as the first item on the
agenda, on 16.12.2015. A reference was also made to Rules 152 to 154
of the 'Conduct of Business Rules', which are extracted below:
"152. Leave of House to take up resolution.- (I) Subject to the
provisions of Article 181 of the Constitution, the Speaker or the
c
Q'W.!J.!J'_fuleaker or such oth~r person as is referred to in clause
(2) ofArticle 180 of the Constitution shall preside when a motion
under rule 151 is taken up for consideration.
(2) The member in whose name the motion stands on the list of
business shall, except when he wishes to withdraw it, move the D
motion when called upon to do so, but no speech shall be pem1itted
at th is stage.
153. Inclusion of Resolution in the list of.- On the appointed day
the Resolution shall be included in the list of business to be taken
up after the questions and before any other business for the day is E
entered upon.
154. Time limit for speeches. - Except with the permission of the
Speaker or the 11erson presiding, a speech on the Resolution shall
not exceed fifteen minutes in duration:
F
Provided that the mover of the Resolution when moving the same
may speak for such longer time as the Speaker or the person
presiding may permit."
Based on the above Rules, it was urged, that the entire proceedings in
the Assembly, are to be regulated by the Speaker (or the Deputy Speaker),
G
and that, the Governor has no role in the proceedings of the House.
52. It was also co1ttended, that the Governor is neither a member
of the State Legislative Assembly, nor an officer of the State Legislature,
and therefore, a Governor can have no jurisdiction in the functioning,
and affairs of the House. It was accordingly asserted, that the intent
H
88 SUPREME COURT REPORTS [2016] 6 S.C.R.

A expressed in Article 168, should not be determined from a cursory reading
thereof, but should be visualised from the scheme of the surrounding
provisions. The Governor's connectivity and relationship with the House,
according to learned counsel, was based on the aid and advice of the
Council of Ministers headed by the Chief Minister.
B 53. It was submitted, that the Governor has no authority
whatsoever, to get embroiled with matters falling under the Tenth
Schedule. It was urged, that the Speaker, was the sole adjudicatory
authority, under the Tenth Schedule, and his actions ~h·reunder cannot
be interfered with, by or at the behest of the Governor. !twas submitted,
that even the Legislative Assembly itself, could not interfere with the
c Speaker's determination, under the Tenth Schedule. It was urged, that
on the same analogy, even the Deputy Speaker of the House, had no
authority whatsoever, to set aside an order passed by the Speaker under
the Tenth Schedule. It was pointed out, that even the Speaker himself
had no power or discretion to review the order of disqualification dated
D 15.12.2015 (as in the present case). In this behalf, reliance was placed
on the following observations recorded in Dr. Kashinath G. Jalmi v. The
Speaker7 :
"49. The power of review which, it is suggested by counsel for
the respondents, inheres in the Speaker by necessary implication
E has to be found in the provisions made in the Tenth Schedule
alone, and not elsewhere. Para 7 has to be treated as non-existent
in the Tenth Schedule from the very inception, as earlier indicated.
As held by the majority in Kihoto Hollohan 1992 Supp (2) SCC
651,judicial review is available against an order of disqualification
made by the Speaker under para 6 of the Tenth Schedule,
F notwithstanding the finality mentioned therein. It is on account of
the nature of finality attaching by virtue of para 6, that the judicial
review available against the Speaker's order has been labelled as
limited in para 110 (at page 711 ofSCC) of the decision in Kihoto
Hollohan and the expression has to be understood in that sense
G distinguished from the wide power in an appeal, and no more. As
held in Kihoto Hollohan, the Speaker's order is final being subject
only to judicial review, according to the settled parameters of the
exercise of power of judicial review in such cases, which it is not
necessary to elaborate in the present context. The existence of
1
H (1993)2sec103
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 89
AND OTHERS [JAGD!SH SINGH KHEHAR, J.]

judicial review against the Speaker's order of disqualification made A
under para 6 is itself a strong indication to the contrary that there
can be no inherent power of review in the Speaker. read in the
Tenth Schedule by necessary implication. The need for correction
of errors in the Speaker's order.made under the Terith Schedule
is met by the availabilitv of judicial review against the same. as
B
held in Kihoto Hollohan. ·
50. In our opinion there is no merit in the submission that the
power of review inheres in the Speaker under the Tenth Schedule
as a necessary incident of his jurisdiction to decide the question of
disqualification; or that such a power existed till November 12,
1991 when the decision in Kihota Hollohan (1992) I SCC 309
c
was rendered: or at least a limited power of review inheres in the
Speaker to correct any palpable error outside the scope of judicial
review."
54. It was the pointed assertion of learned senior counsel, that the
order of the Deputy Speaker dated 16.12.2015, quashing the Speaker's D
order dated 15.12.2015 (disqualifying 14 members of the House,
belonging to the INC}, was totally without jurisdiction. It was also urged,
that if any individual including the Deputy Speaker of the Assembly and/
or the other 13 disqualified members of the House were aggrieved, they
could have legitimately taken recourse to judicial review, either before E
the jurisdictional High Court under Article 226, or before this Court under
Article 32. It was pointed out, that the disqualified MLAs had actually
assailed their disqualification orders before the High Court. It was
accordingly submitted, that the decision of the Deputy Speaker, quashing
the order of the Speaker dated 15.12.2015 (disqualifying 14 MLAs of
the INC), was per se unconstitutional, it lacked jurisdictional authority, F
and as such, was unacceptable in law.
55. In addition to the above, it was submitted, that the Deputy
Speaker of the Assembly - Tenzing Norbu Thongdok was one of the 14
INC MLAs of the Assembly disqualified by the Speaker vide his order
dated 15.12.2015. As such, it was urged, that it was not open to the G
Deputy Speaker, to set aside the order of his own disqualification. It was
submitted, that the aforesaid determination at the hands of the Deputy
Speaker, amounted to the Deputy Speaker acting as a judge in his own
cause. It was pointed out, that not only his action was illegal, but the
same was also violative of the rules of natural justice. With reference to H
90 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the importance of the validity (or invalidity) of the order of the Deputy
Speaker dated 16.12.2015, it was pointed out, that in case the above
order was found by this Cou1t to be unacceptable in law, the paiticipation
of the 14 disqualified MLAs belonging to the INC, in the proceedings of
the House on 16.12.2016 - and thereafter, was liable to be considered
as non est in the eyes of law. It is important for us to record, that the
B
validity of above order of the Deputy Speaker, is sub-judice before the
jurisdictional High Cou1t at Guwahati.
56. It was submitted, that the proceedings of the Assembly held
with effect from 16.12.2015, till the House was prorogued on 18.12.2015
with the participation of the 14 disqualified MLAs belonging to the INC,
c was nothing but an ove1t political act of the BJP MLAs, supported by
the Governor, to undermine the democratic process in the State. It was
submitted, that once the Governor had summoned the leader of the
political pa1iy, having the largest strength amongst the different political
parties, to form Government, without any suppo1t from any other political
D party, the action of the Governor expressed through the order and message
dated 9.12.2015 was absolutely undemocratic, and unconstitutional.
57. Mr. F.S. Nariman, learned Senior Advocate entered
appearance, in support of the claim raised by the appellants. He
represented Bamang Felix - Deputy Chief Whip of the INC. In his
E opening statement, Mr. Nariman adopted the factual and the legal
submissions advanced on behalf ofNabam Rebia. He pointed out, that
he affirmed the submissions advanced by Mr. Kapil Sibal, but would
assist the Court, by projecting some further constitutional aspects.
58. In the first instance, learned senior counsel placed reliance on
F two repo1ts. The first - the Justice Sarkaria Commission report, on
"Centre-State Relations", and the second - the Justice M.M. Punchh!
Commission report, on "Constitutional Governance and Management of
Centre-State Relations". It was pointed out, that in the Justice Sarkaria
Commission report, Chapter 5 was attributed to the role of the Governor.
And in the Justice M.M. Punchhi Commission report, Chapter 4 was
G ascribed to the role .of the Governor. It was asse1ted, that reference to
both the reports would be repetitive, inasmuch as, the conclusions drawn
in the Justice Sarkaria Commission repo1t, had been substantially affirmed
and reiterated in the Justice M.M. Punchhi Commission report. It was
therefore, that learned counsel placed reliance only on the Justice M.M.
H Punchhi Commission report. He invited our attention to paragraph 4.1.03,
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 91
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

of the report, wherein the Commission adopted the reasoning expressed A
during the proceedings of the Constituent Assembly for arriving at its
conclusions. Reference was also made to paragraphs 4.2.09 to 4.2.15
high!ightingthe fact, thatthe Governor in exercise of his fi.111ctions, cannot
act in his individual capacity, especially when the function sought to be
discharged (by the Governor), is in the realm of executive dispensation.
B
Reliance was also placed on paragraph 4.3 of the report (in its entirety),
which expounds the proposition, that it is not expected of the Governor
to embroil himself in day-to-day activities ofrival political parties, and
that, Governors are expected to be independent, and to act in a manner
devoid of any political consideration. It was pointed out, that independence
of such actions would include, keeping the State Legislature and the c
political executive, shielded from the political will of the Union Government.
Especially when the concerned State and the Union were not being
governed by the same political party/conglomerate. Last of all, reliance
was placed on paragraph 4.5, and more particularly, on sub-paragraph
4.5.03, to demonstrate, that a reading of the constitutional provisions had
D
resulted in the two Commissions very clearly expounding, that the
Governor was bound to act in consonance with the aid and advice tendered
to him, by the Council ofMinistersand the Chief Minister. It was pointed
out, that the aforesaid mandate was also applicable to situations, where
provisions of the Constitution had used expressions Iike "he thinks fit".
It was pointed out, that only in situations, where a constitutional provision E
expressly requires the Governor to exercise his fui1ctions in his own
discretion, it is open to the Governor to do so. Only then, the exercise of
such discretion, will be deemed to have been constitutionally exercised.
Paragraphs of the Justice M.M. Punchhi Commission report, relied upon
by learned senior counsel, are extracted hereunder:
F
"4.1.03 Dr. B.R. Ambedkar, highlighted the Constitutional role of
the Governor in following terms:
"The Governor un.QerJh~S::Qrn;tltution has no functions which he
can discharge fil' himself: no functions at all. While he has no
functions, he has certain duties to perform, and I think the House
G
will do well to bear in mind this distinction. This Article (Article
167) certainly, it should be borne in mind, does not confer upon
the Governor the power to overrule the Ministry on any particular
matter. Even under this Article, the Governor is bound to accept
the advice of the Ministry ... This Article, nowhere, either in clause
(a) or clause (b) or clause (c1 savs that the Governor in any H
92 SUPREME COURT REPORTS [2016] 6 S.C.R.

A particular circumstances may overrule the Ministry. Therefore.
the criticism that has been made that this Article somehow enables
the Governor to interfere or to upset the decision of the Cabinet is
entirely beside the point, and completely mistaken.
A distinction has been made between the functions of the Governor
8 and the duties which the Governor has to perform. My submission
is that although the Governor has no functions still, even the
Constitutional Governor, that he is, has certain duties to perform.
His duties according to me, may be classified in two parts. One is,
that he has to retain the Ministry in office. Because, the Ministry
is to hold office during his pleasure, he has to see whether and
c when he should exercise his pleasure against the Ministry. The
second duty which the Governor has, and must have, is to advice
the Ministry, to warn the Ministry, to suggest to the Ministry an
alternative and to ask for a reconsideration. I do not think that
anybody in this House will question the fact that the Governor
D should have this duty cast upon him; otherwise, he would be an
absolutely unnecessary functionary: l}O good at all. He is the
representative not of a party; he is the representative of the people
as a whole of the State. It is in the name of the people that he
carries on the administration. He must see thatthe administration
is carried on at a level which may be regarded as good, efficient.
E honest administration. I submit that he cannot discharge the
constitutional functions of a Governor which I have just referred
to unless he is in a position to obtain the information ... It is to
enable the Governor to discharge his functions in respect of a
good and pure administration that we propose to give the Governor
F the power to call for any information ...
4.2.09 The Governor does not exercise the executive functions
individually or personally. The State Government at various levels
takes executive action in the name of the Governor in accordance
with the rules of business framed under Article 166(3). Hence, it
is the State Government and not the Governor who may sue or be
G sued in respect of any action taken in the exercise and performance
of the powers and duties of his office [Articles 361. 299(2) and
300].
4.2.10 The Governor enjoys the same privileges as the President
does under Article 361 and he stands, in this respect, on the same
H footing. Article 361 states that neither the President nor the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 93
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Governor can be sued for executive actions of the Government. A
The reason is that neither the President nor the Governor exercises
the executive functions individually or personally.
4.2.11 The Governor is not answerable to any court for the exercise
and the performance of the powers and duties of his office, or for
'any act done or purporting to be done by him' in the exercise and 8
performance of those duties. The words 'purporting to be done
by him' are of very wide import, and even though, the act is outside
the scope of his powers, so long it is professed to be done in
pursuance of the Constitution, the Governor will be protected.
4.2.12 Lack of bona-fide vitiates executive action, but due to the
operation ofArticle 361 the Governor is not personally responsible. c
Even where the Governor's bonafide is in question while exercising
his discretionary powers, such as appointment and dismissal of
Chief Minister, he cannot be called to enter upon defense. The
Madras High Court had held that a combined reading of Articles
154, 163 and 361 would show that the immunity against D
answerability to any Court is regarding functions exercised by the
Governor qua Governor and those functions in respect of which
he acts on the advice of the Council of Ministers or in his discretion.
4.2.13 In the recent case of Rameshwar Prasad, Chief Justice
Sabharwal, while stating the majority opinion held: The immunity
E
granted to the Governor under Article 361 ( 1) does not affect the
power of the Court to judicially scrutinize the attack made to the
proclamation issued under Article 361 (1) of the Constitution of
India on the ground of mala fides or it being ultra vi res. It would
be for the Government to satisfy the court and adequately meet
such ground of challenge. A mala fide act is wholly outside the F
scope of the power and has no existence in the eyes of law. Even,
the expression "purporting to be done" in Article 361 (I) does not
cover acts which are mala fide or ultra vires and, thus, the
Government supporting the proclamation under Article 361 ( 1) shall
have to meet the challenge.
G
The personal immunity from answerability provided in Article
36](1) does not barthe challenge that may be made to their actions.
Under law, such actions including those actions where the challenge
may be based on the allegations ofmala fides are required to be
defended by Union of India or the State, as the case may be.
H
94 SUPREME COURT REPORTS (2016] 6 S.C.R.

A Even in cases where the personal mala fides are alleged and
established; it would not be open to the Governments to urge that
the same cannot be satisfactorily answered because of the
immunity granted. In such an eventuality, it is for the respondent
defending the action to satisfy the Court either on the basis of the
material on record or even filing the affidavit of the person against
8
whom such allegation of personal mala fides are made. Article
361(1) does not bar filing ofan affidavit ifone wants to file on his
own. The bar is only against the power of the Court to issue
notice or making the President or the Governor answerable. In
view of the bar, the Court cannot issue direction to President or
c Governor for even filing of affidavit to assist the Court.
4.2.14 In a ve1y limited field. howe\~JJb.eS!.\wernoi:..ill!!Y exercise
certain functio_ns in his dis~n~tion~_provided ii] Article 163( I).
The first part of Article 163( 1) requires the Governor to act on
the advice of his Council of Ministers. There is. however. an
D exce12tion 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 exP.ression "required" signifies that the Governor
can exercise his discretionary powers only if there is a compelling
necessity to do so. It has been held that the expression "by or
under the Constitution" means that the necessity to exercise such
E powers may arise from any express provision of the Constitution
or by necessary implication. We would like to add that such
necessity may also arise from rules and orders made "under" the
Constitution."
4.2.15 Thus, the scope of discretiona1y powers as provided in the
F exception in clause ( 1) and in clause (2) of Article 163 has been
limited by the clear language of the two clauses. It is an accepted
principle that in a parliamentary democracy with a responsible
form of government, the powers of the Governor as Constitutional
or formal head of the State should not be enlarged at the cost of
the real executive, viz. the Council of Ministers. The scope of
G discretionary powers has to be strictly construed, effectively
dispelling the apprehension, if any, that the area for the exercise
of discretion covers all or any of the functions to be exercised by
the Governor under the Constitution. In other words, Article 163
does not give the Governor a general discretionary power to act
H against or without the advice of his Council of Ministers. The
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 95
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

area for the exercise of his discretion is limited. Even this limited A
area. his choice of action should not be arbitrary or fanciful. It
must be a choice dictated by reason, actuated by good faith and
tempered by caution.
4.3 Role of Governor in Management of Centre-State Relations
4.3.0 I The role of the Governor has been a key issue in the matters B
of Central State relations. The Constitution of India envisages
three tiers of Government - the Union, State and the Local Self-
Government. In the light ofa volatile Political system prevailing
today, it is pertinent to recognize the crucial role played by the
Governors in the working of the democratic framework.
Addressing the Conference of Governors in June 2005, the
c
President of India, Dr. A.P.J. Abdul Kalam stressed the relevance
of recommendations of the Sarkaria Commission and observed
that "While there are many checks and balances provided by the
Constitution, the office of the Governor has been bestowed with
the independence to rise above the day-to-day politics and override D
compulsions either emanating from the central system or the state
system. "The Prime Minister, Dr. Manmohan Singh on the same
occasion noted that "you are the representatives of the centre in
states and hence, you bring a national perspective to state level
actions and activities". The then Vice-President oflndia, Shri G.S.
Pathak, had remarked in 1970 that "in the sphere which is bound E
by the advice of the Council of Ministers, for obvious reasons, the
Governor must be independent of the center" as there may be
cases "where the advice of the Center may clash with advice of
the State Council of Ministers" and that "in such cases the
Governor must ignore the Centre's "advice" and act on the advice F
of his Council ofMinisters.".
4.3.02 One highly significant role which he (Governor) has to play
under the Constitution is of making a report where he finds that a
situation has arisen in which the Government of the State cannot
be carried on in accordance with the provisions of the Constitution.
G
The Governor is not amenable to the directions of the Government
of India, nor is he accountable to them forJhe manner in which he
carries out his functions and duties. He is an independent
constitutional office which is not subject to the control of the
Government of India.
H
96 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 4.3.03 The Court in Rameshwar Prasad case affirmed the
following views of the Sarkaria Commission that the Governor
needs to discharge "dual responsibility" to the Union and the State.
Further, most of the safeguards as regards the working of the
Governor will be such as cannot be reduced to a set of precise
rules of procedure or practice. This is so because of the very
B
nature of the office and the role of the Governor. The safeguards
have mostly to be in the nature of conventions and practices, to
be understood in their proper perspective and faithfully adhered
to, not only by the Union and the State Governments but also by
the political parties.
c 4.5 Powers of the Governor in the Context of Harmonious Centre-
State Relations
Article 163 of the Constitution, unlike Article 74. carves out two
ways in which the power of the Governor must be exercised.
One, in which the Governor has to act in accordance with the aid
D and advice of the Council of Ministers and two. where he exercises
his personal discretion. The concept of the Governor acting in his
discretion or exercising independent judgment is not alien to the
Constitution. The normal rule is that the Governor acts on the aid
and advice of the Council of Ministers, but there are exceptions
under which the Governor can act in his own discretion. The
E powers in exercise of which the Governor has to use his personal
discretion have now been settled through judicial pronouncements.
In relation to other powers, even though the Constitution uses
phrases like "he thinks fit" and "in exercise of his discretion", the
Governor must act on the aid and advise of the Council of
F Ministers.
Article 163(2) gives an impression that the Governor has a wide,
undefined area of discretionary powers even outside situations
where the Constitution has expressly provided for it. Such an
impression needs to be dispelled. The Commission is of the view
that the scope of discretionary powers under Article 163(2) has
G
to be narrowly construed, effectively dispelling the apprehension,
if any. that the so-called discretionary powers extends to all the
functions that the Governor is empowered under the Constitution.
Article 163 does not give the Governor a general discretionary
power to act against or without the advice of his Council of·
H Ministers. In fact. the area for the exercise of discretion is limited
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 97
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

and even in this limited area. his choice of action should not be nor A
appear to be arbitrary or fanciful. It must be a choice dictated by
reason. activated by good faith and tempered by caution.
The Governor's discretionary powers are the following: to give
assent or withhold or refer a Bill for Presidential assent under
Article 200; the appointment of the Chief Minister under Article B
164; dismissal of a Government which has lost confidence but
refuses to quit. since the Chief Minister holds office during the
pleasure of the Governor; dissolution of the House under Article
174; Governor;s report under Article 356; Governor's responsibilitv
for certain regions under Article 371-A, 371-C. 371-E, 371-H etc.
These aspects are now considered below: c
4.5.03 Dismissal of the Chief Minister
It has already been stated that the Council of Ministers occupy
office upon the pleasure of the Governor. Further. Article 164
states that Council ofMinisters shall be collectively responsible to
the Legislative Assembly of the State. So the question arose as to D
whether the discretion of the Governor or his pleasure is curtailed
by the fact that the Ministers no longer enjoy the confidence of
the House. Courts have time and again clarified that the discretion
of the Governor is not fettered by any condition or restriction. It
was held thatthe Assembly could only express want ofconfidence
E
in the Ministry; it can go no further. The power to dismiss solely
and entirely rests with the Governor. However, the fact that the
Ministry has lost confidence is a major consideration for its
dismissal.
The Sarkaria Commission recommended that if a Government
loses its majority, it should be given a chance to prove whether it F
has a majority or not on the floor of the House. The Governor
should not dismiss a Council of Ministers, unless the Legislative
Assembly has expressed on the floor of the House its want of
confidence in it. He should advise the ChiefMinisterto summon
the Assembly as early as possible. If the Chief Minister does not G
accept the Governor's advice, the Governor may, summon the
Assembly for the specific purpose of testing the majority of the
Ministry. The Assembly should be summoned to meet early within
a reasonable time. What is "reasonable" will depend on the
circumstances of each case. Generally, a period of 30 days will
H
98 SUPREME COURT REPORTS [2016) 6 S.C.R.

A be reasonable, unless there is very ur.gent business to be
transacted, such as passing the Budget, in which case, a shorter
period may be indicated. On the question of dismissal of a Chief
Minister, the Governor should invariably insist on the Chief Minister
proving his majority on the floor of the House for which he should
prescribe a time limit. This view of the Sarkaria Commission ought
B
to be considered in the form ofa Constitutional Amendment.
4.5.04 Summoning, proroguing and dissolution of the legislative
assembly
Article 174 of the Constitution empowers the Governor to summon,
prorogue or dissolve the House. It is a well-recognised principle
c that, so long as the Council of Ministers enjoys the confidence of
the Assembly, its advice in these matters, unless patently
unconstitutional must be deemed as binding on the Governor. It is
only where such advice, if acted upon, would lead to an
infringement of a constitutional provision, or where the Council of
D Ministers has ceased to enjoy the confidence of the Assembly,
that the question arises whether the Governor may act in the
exercise of his discretion. The Sarkaria Commission recommended
that, if the Chief Minister neglects or refuses to summon the
Assembly for holding a "Floor Test", the Governor should summon
the Assembly for the purpose. As regar~roroguing a House of
E Legislature, the Governor should normally act on the advice of
the ChiefMinister. But where the latter advises prorogation when
a notice of no-confidence motion against the Ministry is pending,
the Governor should not straightaway accept the advice. If he
finds that the no-confidence motion represents a legitimate
F challenge from the Opposition, he should advice the Chief Minister
to postpone prorogation and face the motion. As far as dissolution
of the House is concerned, the Governor is bound by the decision
taken by the Chief Minister who has majority. However, if the
advice is rendered by a Chief Minister who doesn't have majority,
then the Governor can try to see if an alternate government can
G be formed and only if that isn't possible, should the house be
dissolved. This Commission reiterates the recommendations of
the Sarkaria Commission in this regard.,.
59. Learned senior counsel then placed reliance on Article 166,
which postulates the manner of conducting the executive business of
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 99
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the State Government. It was pointed out, that the Governor, has been A
assigned the responsibility of framing rules under Article 166. For the
State of Arunachal Pradesh, these rules were notified on 9 .4.1987::.. the
Arunachal Pradesh Rules of Executive Business, 1987 (hereinafter
referred to as, the Rules of Executive Business). It was submitted, that
Part-I of the Rules of Executive Business containing Rules 4 to 12 are
B
clustered under the heading - "Allocation and Disposal of Business".
Whereas Part-II containing Rules 13 to 21, are grouped under the ·.
heading- "Procedure of the Cabinet". Learned counsel thereupon, invited
our attention to Rule 4 from Part-I and Rules 13 and ·14 from Part-II,
which are being extracted hereunder:
Part I c
xxx xxx xxx
Rule4
"4. The business of the Government shall be transacted in -its
different departments. Allocation of subjects among the·
departments shall continue to be as set out in the Government of D
.· Arunachal Pradesh (Allocation) Rules, 1975 (as notified from time .
to time) until new Rules are prescribed."
Part II
xxx xxx
Rules 13 and 14 E
"13. The Chief Secretary shall be the Secretary to the Cabinet·
and another officer shall be designated to ee the Joint Secretary
to the Cabinet. In the· absence of both the Chief Secretary and
the Joint Secretary to the Cabinet the Chief Minister may appoint
for this purpose any other Secretary to f.unction as the Secretary
to the Cabinet. F
· 14. All cases referred to as in the schedule shall, after consideration
by the Minister be sent to the §ecretary with a view to obtaining
orders of the Chief Minister for circulation of the-case.under Rule
16 or for bringing it for consideration at a meeting of the Cabinet."
60. Learned counsel then drew our attention to the Schedule G
referred to in Rules 8 and 14, and further invited our attention, to item
no.4 in the said Schedule which is extracted below:
"Proposals to summon, prorogue or dissolve the legislature of the . · ·
State".
H
100 SUPREME COURT REPORTS [2016] 6 S.C.R.

A It was urged on behalf of the appellants, that in the matter of summoning
the House for 16.12.2015, the procedure contemplated under Rules 8,
13 and 14 ought to have been adopted. But the same was breached.
Learned senior counsel further pointed out, that while passing the order
dated 3.11.2015 (when the same Governor had summoned the 6th session
of the House to meet at 10 a.m. on 14.1.2016), the procedure
B contemplated under Rules 8 and 14 was duly followed. Learned counsel
then referred to the summoning particulars to demonstrate, that the
proposal to summon the 6th.s~ssion of the House, had emanated from
the Chief Minister. The Court's attention was also invited to the fact,
that the Speaker of the Assembly had also been consulted, on the matter,
c as also the duration of the 6th session, whereupon, the Chief Minister
submitted the outcome on the matter to the Governor. It was pointed
out, that the Governor had duly accepted the proposal, and had scheduled
the 6th session of the Assembly, to meet at I 0 a.m. on 14.1.2016. It was
asserted, that the above rules framed under Article 166 were binding
and every constitutional authority, including the Governor of the State,
D
who js bound to carry out his functions/duties in compliance therewith.
61. In addition to the above, our attention was invited to the
'Conduct of Business Rules', framed under Article 208. Learned senior
counsel pointedly drew our attention to Rule 3, which is extracted
hereunder:
E "3. The Chief Minister shall, in consultation with the Speaker, fix
the date of commencement and the duration of the session, advise
the Governor for summoning the Assembly under Article 174 of
the Constitution."
A perusal of the above rule, according to learned senior counsel, postulates
F a procedure, similar to the one-contemplated under the Rules of Executive
Business, framed under Article 166. It was submitted, that in view of
the clear mandate of Rule 3 extracted above, not only the Rules of
Executive Business, framed under Article 166 must be deemed to have
been breached by the Governor(through his order dated 9.12.2015), the
G Governor must also be deemed to-have breached Rule 3 of the Conduct
of Business Rules, framed under Article 208. It was therefore the
contention of learned counsel for the appellants, that the order of the
Governor dated 9.12.2015, preponing the 6th session of the Assembly
from the earlier determined date - 14.01.2016, by summoning it for
16.12.2015, was in breach of the rules framed under the Constitution,
H and was liable to be set aside.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 101
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

The foundation of the respondents' case: A
The third sequence of facts:
62. A notice of resolution for the removal of the Speaker - Nabam
Rebia, was moved on 19.11.2015. This factual position is not in dispute.
The authors of this notice were 13 MLAs- 11 belonging to the BJP and
2 Independent MLAs. It was submitted on behalf of the appellants, that B
a notice of resolution dated 16.11.2015 was moved by 16 MLAs, all
belonging to the INC, for the removal of the Deputy Speaker - Tenzing
Norbu Thongdok. This factual position is disputed at the hands of the
respondents. The claim of the respondents before this Court was, that
no such resolution had been moved under Article 179, forthe removal of
the Dep~ty Speaker. During the course of hearing, we ventured to
c
determine the factual position. In support Qf their assertion, learned
counsel for the appellants invited our attention to a xerox copy of the
notice dated 16.11.2015, which is reproduced below:
''To,
The Secretary' D
Arunachal Pradesh Legislative Assembly
Naharlagun.
Sub: Resolution for Removal of Deputv Speaker, under Article
179(c) of Constitution of India and Rule 151 (Chapter XX) of
Rules of procedure and conduct of Business AP Legislative E
Assembly.
Sir,
We the Members of the 61h Arunachal Pradesh Legislative
Assembly do here by move this resolution as per the Articles and
Rules quoted in the subject cited above. The specific Charges
against the incumbent Deputy Speaker warranting his removal F
from the post are as below: · . .
1. The Deputy Speaker is absent from attending his office
continuously for a period three months which shows disability to "
hold the post of Deputy Speaker
2. The Deputy Speaker is involved in active political dissidence G
activity and thereby demeaning the office of the Deputy Speaker
and also there by the neutrality and sanctity of the Legislative
Assembly is at stake.
Therefore, we request you to kindly accept this resolution and
initiate necessary action immediately.
Yours Sincerely" · H
102 '
SUPREME COURT REPORTS [2016] 6 S.C.R.

A All 16 MLAs had affixed their signatures, below theabove notice. Having
perused the aforesaid document, and having found no clear endorsements
thereon (depicting the receipt thereof, in the office of the Secretary,
Arunachal Pradesh Legislative Assembly), we called.for the original.
During the hearing, learned counsel representing the appellants adopted
the stance, that the original resolution was in the custody of the
B
respondents, whereas, learned counsel for the respondents pleaded to
the contrary, namely, that the same was in the custody of the appellants.
It is therefore apparent, that even though the Court desired to peruse the
original resolution mpved by 16 MLAs for the removal of the Deputy
Speaker, the same was never produced for consideration. For sure the
c appellants, ifnothing else, could have filed an affidavit of the concerned
16 MLAs, along with a copy of the resolution. But they did nothing of
the sort.
63. Despite the above, it was asserted on behalf of the
respondents, that there was substantial material on the record of the
D case, to demonstrate that such a resolution had never been moved. In
order to establish that the notice dated 16.11.2015 was actually submitted,
learned counsel for the appellants referred to a letter dated· 7.12.2015
addressed by the.Deputy Secretary - Minik Damin (attached to the
Governor), to the Secretary of the Legislative Assembly. The above
communication which bore reference number GS/I-115/00 (Vol.II)/6742,
E
is being extracted hereunder:
"To
The Secretary,,
·Arunachal Pradesh Legislative Assembly,
Arunachal Pradesh,
F Naharlagun.
Sub: Notice of Resolution for removal of Deputy Speaker.
Sir,
I am directed to inform you that there is a Notice of Resolution
for removal of Deputv Speaker. A copy of the resolution may
G kindly be forwarded to this Office for information and perusal of
His Excellency the Governor. The Hon'ble Governor would also
like to have the following information on the above stated resolution
at the earliest.
I. Date ofreceipt of the notice of the resolution in the Legislative
H Assembly.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER I 03
·AND OTHERS [JAGDISH SINGH KHEHAR, J.]

2. Action taken by the Legislative Assembly on the notice: A
3. Highlight
' .
of the precedents, if any.
'

Kindly ensure that replies of above points are sent latest by 8'•
December, 2015.
Yours faithfully,
signed(illegible) B
07.12.2015
(MinikDamin)
Deputy Secretary to Governor"
The aforesaid communication, according to learned counsel for the
appellants, was responded to by the Secretary of the Legislative Assembly c
'. on the following day, i.e., 8.12.2015. The response is extracted below:
"To,
The Secretary to Governor,
.Governor's Secretariat,
RajBhawan,
Itanagar. D
Sub: Notice of Resolution of Removal ofHon'ble Deputy Speaker.
Sir, .
With reference to your letter No. GS/1-115/00 (Vol-II) 6742
dated 7"' December, 2015 on the above mentioned subject, I am
to furnish the following information required by you for kind peruSal
E
of His Excellency,
I.
.
o.t~ of Receipt of
. !I'•
the Governor.
!6th November. 2015.
Notice of the Resofu11on
of the Legislative
Assembly.
2. Action Taken by !he Fl le processed and \!!!der F.
Legislative Assembly on consideration of Hon'ble
Notice Speaker.
·· 3. Highlightoflhe precedent Nill

Yours faithfully,
signed
8/XII/15 G
(M.LASA)
Secretary,
Arunachal Pradesh
Legislative Assembly,
Naharlag\!!!.
Signed (illegible) 8/12115'
H '
t
)
104 . SUPREME COURT REPORTS [2016) 6 S.C!l(

•
A

B

c

E

Further it is learned that Hon'ble speaker is en tour in his home
con-sti1uency. He is: likely to return late night today.
For information please.
F signed (illegible)
(Tage Ha bung) SP
A DC to G ovcrnor
Di. Secretary to Governor
_,

G
H.E. maY like to Peruse Please.
Signed
8.12.1 s
D.S.
Illegjble
signed
08.12.IS"
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 105
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Based on the note/endorsement extracted above, it was submitted, that A
even though the Deputy Secretary to the Governor, through his
communication dated 7.12.2015, had sought "A copy of ... " the notice of
resolution for the removal of the Deputy Speaker - Tenzing Norbu
Thongdok, the same was not furnished to the Governor. Further more, it
was pointed out from the note/endorsement dated 8.12.2015 (of the
B
Superintendent of Police-cum-ADC to the Governor), that even on his
visit to the office of the Speaker, when he had met the Secretary, the_
Additional Secretary and the Officer-on-Special Duty to the Speaker,
he was not furnished with a copy of the notice of resolution for the
removal of the Deputy Speaker. Rather he was informed, that the same
was in the personal custody of the Speaker, who was on tour in his home c
constituency. Learned counsel for the respondents wishes us to draw a
very important inference, from their instant assertion. That, the factum
of the custody of the notice of resolution for the removal of the Deputy
-;· Speaker, was allegedly in the custody of the Speaker of the House, and
that, the Speaker never ever produced the original t-hereof. And the
D
Speaker, who is one of the appellants before this Court, did not produce
_the same, even when it was called for by the Court. And secondly, despite
repeated efforts made by the Governor, to obtain a copy of the notice of
.resolution for the removal of the Deputy Speaker - Tenzing Norbu
Thongdok, no such copy was ever furnished to him, by the office of the
Secretary of the Legislative Assembly. E
66. More important than the factual inferences drawn in the
foregoing paragraph, was the assertion at the hands of the respondents,
that the letter addressed by the Secretary of Legislative Assembly dated
8.12.2015, to the Secretary to the Governor extracted hereinabove, was
a forged and fabricated document. The accusation was aimed at the F
appellants, who alone could be beneficiaries of the above resolution. To
demonstrate, that the communication dated 8.12.2015 was a forged and
fabricated document, the Court's attention was drawn towards a similar
intimation, about the notice ofresolution for the removal of the Speaker,
on the very same day- 8.12.2015. The above communication, bearing
endorsement number LA/Leg.26/2015, is extracted hereunder:- G
"Dated Naharlagun, the 8th Dec,
2015.
To,
The Secretary to Governor,
Governor Secretariat, H
106 " , SUPREME COURT REPORTS ·. [2016) 6 S.C.R; ': ·

A- Raj Bhawan Itanagar,
Arunachal Pradi;sh.
Sub:- Notice of Resolution for Removal ofHon'ble Speaker•
. Sir,
With reference to your Letter No.GS/1-115/00 (Vol.II) 6743,
B Dated 07112/2015, on the above mentioned subject, I am to furnish
the following information required by you for kind perusal of His
Excellency the Governor.

I. Date ofrecejpt of the notice 19/1 l/2(JJ5
of the resolution of the
c Legislative Assembly.
2. . Action taken by the File processed and ·
Legislative Assembly on under consideration
the notice ofHon'ble Speaker
3. Highlight of the precedents, Nil.
if any.
D Yours faithfully,
signed
(M. Lasa)
Secretary,
Arunachal Pradesh, Legislative
Assembly
E
Naharlagun."

It was the submission oflearned senior counsel forthe respondents, that ·
the letter-head on which the two communications were add~essed by
c the Secretary of the Legislative Assembly on 8.12.2015, depicting details

F of the resolutions for the removal of the Speaker and the Deputy Speaker,
even though addressed on the same day, were different. Having perused ·
the same, we hereby affirm the assertion. It was also pointed out, that·
the seal of the receipt affixed by the Governor's Secretariat, on the two
~-- 1., t. . •
letters were markedly different, inasmuch as, the seal of the Governor's
Secretariat on the letter bearing no.LA/LEG-24/2015 (pertaining to the
G
notice ofresolutionJor the removal of the Deputy Speaker) was oflong
and almost twice the size of the seal on .the letter bearing no. LA/LEG-
26/2015 (pertaining to the notice of resolution for the removal of the
Speaker), ·which was circular. The former letter merely recorded in
writing the date 8.12.20 IS on the receipt, whereas the latter bears a
H printed receipt number, as also, a printed date of receipt, which we were
NAB AM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER I 07
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

informed, is the usual practice adopted in the Secretariat of the Governor. A
67. To contest the above accusation, it was submitted on behalf
of the appellants, that no receipt number was depicted even in the former
letter bearing no. LA/LEG-24/2015, dated 8.12.2015, which the
respondents acknowledge as genuine. The respondents therefore placed
reliance on a third communication, which was also addressed by the B
Secretary of the Legislative Assembly, to the Commissioner to the
Governor, on the subject of preponement of the 6th Legislative Assembly.
The instant communication, bearing endorsement number LA/LEG-23/
2015, is extracted below:
~ c
The Commissioner,
to the Governor,
Arunachal Pradesh,
Itanagar.
Sub.: Preponing of Sixth Legislative Assembly.
Sir., D
Please refer Deputy Secretary's letter NO.GS/1-11/00 (Vol.
- Il/6778 dated 10.12.2015 forwarding (i) Order modifying
summons dated 3'd November, 2015 under 174( 1) of the
Constitution oflndia; and (ii) Message under article 175 (2) of the
Constitution oflndia. E
This office had issued summons for the Sixth Session of Sixth
Legislative Assembly conveying the order dated 03.11.2015 of
His Excellency. Accordingly, this office has swung in to action
and initiated all necessary steps for conducting the Session with
effect from I 41h January, 2015. In the meantime we have received F
a communication referred above from the Deputy Secretary,
Governor's Secretariat preponing the assembly session and fixing
the agenda for the Session.
I am to state that as per normal practice and procedure the
notice for summoning of the Assembly Session should reach the G
Legislative Assembly Secretariat through the Department of
Parliamentary Affairs Department of the State Govt. Secondly.
under article 174 there is no provision to prepone or postpone
Assembly Session without consulting the Govt/Speaker. Article
175 clearly relates that His Excellency can address and send
messages to when the House in Session. H
108 SUPREME COURT REPORTS [20 I 6] 6 S.C.R.

A It may be mentioned here that as per rules and procedure of
Arunachal Pradesh Legislative Assembly agenda for any session
is finalized by the Business Advisorv Committee as per order of
precedence in the Rules.
However. Legislative Assembly Secretariat has obtained legal
opinion and advice from the Learned Advocate General of
B
Arunachal Pradesh which is enclose herewith for your perusal
and guidance.
Recd at
3 pm. Please
put up on file
expeditiously. - US (NN) to
c receive.a copy
signed
14/12

US <NNl
D.S.
D
State Cabinet in its meeting held today at I 000 hrs has also conveyed its
resolution which is reproduced below for your perusal "We have also
received the opinion of the Ld. Advocate General dated 12.12.2015 on
the said Order and Message. The Cabinet has per used the said opinion
and is in complete agreement with views the Ld. Advocate General.
E
The said order dated 09.12.2015 issued by His Excellency the
Governor of Arunachal Pradesh is in contradiction to Article 174 read
with Article 163 of the Constitution oflndia and Rule 3 of the Rules of
P{ocedure and Conduct of Business ("Rules"). Similarly, the message
is contrary to Article 175 of the Constitution read with Rule 245 of the
F Rules.
We, therefore advice the Hon'ble Speaker not to take any action
on the said Order and Message. The concerned officers are accordingly
directed to take necessary action." · ·
In view of above, we have no other alternative but to stick to the
earlier order of His Excellency to convene the Sixth Assembly Session
G
with effect from I 4"' to 18"' January, 2015 excluding the ho! idays.
Yours faithfully,
signed (illegible)
(M. Lasa)
Secretary,
H Arunachal Pradesh, Legislative Assembly"
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 109
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

68. It was submitted on behalf of the respondents, that the seal on A
the receipt of the instant communication in the Governor's Secretariat,
is identical to the receipt of the notice of resolution for the removal of
the Speaker. This communication, according to learned counsel for the
respondents, was a genuine communication, which was duly received at
the Governor's Secretariat. The reliance on the instant communication
B
dated 14.12.2015, according to learned senior counsel, is of utmost
significance to determine, that fraud had been played by the appellants.
This assertion was sought to be demonstrated, by depicting the numbers
assigned to the three communications of the office of the Secretary of
the Legislative Assembly, coupled with the date of issuance thereof.
We may tabulate the position as under: c
SI. Letter Nos. Dated Receipt No. and date
No. thereof at the
Governor's
Secretariat
~D
I. LA/LEG-2312015 14'h December, 2015 Receipt No. 6246
dated 14.12.2015

2. LNLEG-2412015 81h December, 2015 Receipt No. Nil,
dated 8.12.2015

3. LA/Leg.26/2015 81h December, 2015 Receipt No.6127 E
dated 8.12.2015

The three letters to which our attention was drawn bore numbers 23, 24
and 26. The first communication which bears no. LA/LEG-23/2015 was
dated 14.12.2015. The said communication was addressed by M. Lasa F
- Secretary ofthe Legislative Assembly, to Commissioner to the Governor,
Arunachal Pradesh. It pertained to the preponement of the 6th Legislative
Assembly. In seriatim, the second communication bearing no. LNLEG-
24/2015 was dated 8.12.2015. The said communication was also
addressed by M. Lasa - Secretary of the Legislative Assembly, to the
Secretary to the Governor. The above noted communications pertained G
to the notice of resolution for the removal of the Deputy Speaker.
Sequentially, the third communication bearing no. LNLEG-26/2015 was'
also dated 8.12.2015. The said communication was addressed by M.
Lasa - Secretary of the Legislative Assembly, to Secretary to the
Governor. The above noted communications pertained to the notice of H
110 SUPREME COURT REPORTS [2016] 6 S.C.R.

A resolution for the removal of the Speaker. It was pointed out, that the
above two letters were issued on the same Jetter-head(s), and their
receipts were recorded under the seal of the Governor's Secretariat,
bearing not only the number of the receipt(s), but also the date(s) of the
receipt. Whereas, the communication pertaining to the notice of resolution
for the removal of the Deputy Speaker, was not only on a different
,,;,-- B
letter-head, but was also with a different seal, and bore no receipt number.
But most importantly, sequentially, the first letter referred to above, was
dated 14.12.20 I 5, whereas the next two communications with the
succeeding reference numbers bore the date 8. I 2.2015. It was pointed
out, that the letter bearing no. LA/LEG-23/2015 having been issued on
c 14.12.2015, the other two letters bearing nos. LA/LEG~24/2015 and LA/
LEG-26/2015 could not bear a date preceding 14.12.2015.
69. We were of the view, that the factual positio11 needed to be
verified, as the inference suggested was logical. We therefore, required
the officer, who was in custody of the despatch register of the office of
D the Secretary of the Legislative Assembly, to produce the same for our
perusal. Having perused the original record, and having heard the
explanation tendered by the officer, all ofus were individually satisfied,
that the numbers jumble suggested on behalf of the respondents, was
not sufficient to lead to the suggested inference. All that can be stated
in conclusion however is, that the material produced by the rival parties
E for our consideration, with reference to the alleged resolution moved on
16.11.2015 by 16 members of the House belonging to the INC, for the
removal of the Deputy Speaker - Tenzing Norbu Thongdok, is not
sufficient to render a clear determination on the matter, one way or the
other.
F The fourth sequence of facts:
'I

70. Mr. Rakesh Dwivedi, learned senior counsel entered appearance
on behalf of respondent nos. 2 to 15, and also, on behalf of respondent
noS:J I to 37. Respondent nos. 2 to 15 are the 14 MLAs belonging to the
INC, who were disqualified by the Speakeron 15.12.2015. Respondent
G nos. 3 I to 37, are 7 more MLAs also belonging to the INC. The first set
of 14 MLAs and the second set of? MLAs referred to above, constitute
the group of 2 I MLAs who had originally been elected on the INC
ticket, and comprise the breakaway group of dissidents, who desired a ,
change in the political leadership in the Assembly. They had demanded
H the removal ofChiefMinister-Nabam Tuki. It would also be relevant
•
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 111
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

. to mention, that respondent nos.31 and 3 7 - Wanglam Sawin and Gabriel A
D. Wangsu, were stated to have tendered their resignations, which were
accepted. Thereupon, the constituencies represented by them, were
declared vacant. It may also be noted, that respondent nos. 31 and 37
had assailed the acceptance of their resignations before the High Court,
but the challenge raised by them, was rejected by the High Court. We
B
are informed, that a Petition for Special Leave to Appeal filed by them
before this Court, assailing the above order of the High Court, has also
been dismissed.
71. The submissions advanced on behalf of the respondents,
require us to record another sequence of facts. It was submitted by
learned counsel, that the 5th session of the Assembly was concluded on
c
21.10.2015. The Governor issued an order on).11.2015 summoning the
6th session, and scheduled its commencement for 14.1.2016. In the
interregnum 13 MLAs - 11 belonging to the BJP and 2 Independent
MLAs, issued a notice (-dated 19.11.20L5) of resolution forthe removal
of the Speaker - Nabam Rebia. The above factual position was D
confirmed by the Secretary of the Legislative Assembly - M. Lasa, to
Secretary to the Governor on 8.12.2015. Having issued the above notice,
the concerned 13 MLAs addressed a letter to the Governor (dated,
19.11.2015) for the preponement of the meeting/proceeding of the House.
The aforesaid communication, which was received in the office of the
E
Governor' on 20.11.2015, is reproduced below:
,''REQUEST TO GOVERNOR FOR PREPONING THE
NEXT SESSION OF APLA TO CONSIDER AND VOTE
ON THE RESOLUTION FOR REMOVAL OF THE
SPEAKER
F
Naharlagun
19-11-2015
Honourable Governor Saheb
We, the undersigned members of the Arunachal Pradesh G
Legislative Assembly. 13 in number, wish to table a notice of
resolution for removal of Shri Nabam Rebia from the Office of
Speaker in exercise of our powers under article 179 read with
article 181 of the Constitution of India further read with Rules
151to154 of the Rules of Procedure of the House.
H
112 SUPREME COURT REPORTS [2016] 6 S.C.R.

A The notice of Resolution for removal of the Speaker, signed
by all of us and addressed to the Secretary, Arunachal Pradesh
Legislative Assembly and endorsed to the Speaker and Deputy
Speaker of the Assembly is enclosed.
As this Resolution is not a resolution under the Rules of
B ~rocedure of the House, but a resolution under article 179 read
with article 181 of the Constitution oflndia, the said Resolution,
as soon as it is given notice of, requires to be disposed of by the
Legislative Assembly immediately after the completion of the
mandatory time period of 14 days prescribed in the Constitution.

c You are aware, sir, that generally sessions of the House are
convened on the recommendation of the Government of the day,
so that matters related to governance are considered by the House.
The matter relating to removal of the incumbent from the Office
of Speaker is not a matter of governance but limited to the confines
of Legislature with which Government of the day is not concerned.
D Since a Speaker enjoys and sustains his office with the support of
the ruling party which now, in the present case, stands reduced to
only 25, even extraordinarily also, no Government recommendations
would be forthcoming for a session to consider the resolution for
removal which we tabled.
E You have however called the next session on the 61h Arunachal
Pradesh Legislative Assembly to meet on J 4!h January, 2016 but
this Resolution for removal for which notice once given, cannot
wait for nearly two months time. Since the Constitutional imperative
has to be complied with, a session at the earliest becomes
F indispensable.
We therefore beseech you sir that you may be pleased to
rescind the summons issued forthe House to meet on J4!h January,
2016 and re-issue the summons for the House to meet at an
emergent date so that the Resolution aforesaid is considered and
G disposed at the earliest in accordance with the scheme, purpose
and timeframe envisaged by the Constitution makers. Any delay
in this behalf would gravely and irreversibly affect the ends of
justice as guaranteed in the said Constitutional provisions and Rules.
You are also aware how recent reports in the newspapers
about the alleged moral turpitude of the incumbent in the office of
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 113
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Speaker as evidenced by the criminal complaint of a women A
against him, that has brought down the esteem of the office of the
Speaker.,, The dignity of the Speaker's office needs thus to be
restored with the utmost dispatch through your hands of calling a
session at the earliest in lieu of the session that has been summoned
to meet on 14.1.2016.
B
You also have the power to modify your summons by merely
preponing the date of the meet from 14 January 2016 to any date
immediately after completion of the 14 days period. As all notices
given after issue of summons are valid. you may be pleased to
prepone the session to a date immediately after 14 days of the
date of notice of our resolution for removal of the Speaker.
c
'
We pray your honour accordingly with the hope that you would
save democracy from peril at the hands of the Speaker.
sd/-
- (T~MIYO TAGA)
D
LEADER OF OPPOSITION
(JAPU DERU)
MLA"
A perusal of the aforesaid communication reveals, that the concerned
13 MLAs had sought the removal of the Speaker - Nabam Rebia under
Articles 179 and 181. It was also pointed out, that in consonance with E
the procedure of the House, such a resolution was required to be
considered and disposed of, by the Assembly immediately after the
minimum mandatory period of 14 days. It was also 'urged, that the ruling
political party-the INC, was no longer enjoying majority in the House,
as its strength stood reduced to only 25 out of a total of 60 members. It F
was in this background, that a prayer was made by the concerned 13
legislators to the Governor, to cancel the summoning of the 6th session
of the Assembly for 14.1.2016, and to re-summon the House at the
earliest, so that the resolution could be settled without any delay. It was
submitted, that the 13 MLAs had advised the Governor, that he had the
- power to modify the earlier summons, and prepone the date of summoning G
of the Asse!llbly.
72. It is also relevant to mention, that on 27.11.2015 the
Commissioner to the Governor, addressed a letter to the Secretary of
the State Legislative Assembly, that the Governor was in receipt of a
resolution signed by 13 members of the House, seeking the removal of H
114 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the Speaker of the Assembly. On behalf of the Governor, the
Commissioner sought the following information through the aforesaid
communication:
"I. Date ofreceipt of the notice of the resolution in the Legislative
Assembly.
B 2. Action being taken by the Legislative Assembly on the notice.
3. Highlights of precedents, if any.
Kindly ensure that replies to above points are sent at the earliest."
73. Even though the aforesaid information was sought expeditiously,
when no such information was furnished by the Secretary of the State
c Legislative Assembly, the Deputy Secretary to the Governor, addressed
another letter dated 3.12.2015 to the above Secretary, seeking the same
information again. The aforesaid communication also remained
unanswered. Whereupon, a third communication dated 7.12.2015 was
addressed to the Secretary of the Legislative Assembly for the same
D purpose. An extract of the letter dated 7.12.2015 is reproduced hereunder:
"To,
The Secretary,
Arunachal Pradesh Legislative Assembly,
Arunachal Pradesh,
E Naharlagun.
Sub: Notice of Resolution for removal of Speaker.
Sir,
I am directed to refer to our letter of even number dated
27.11.2015 and 03.12.2015 on the above subject wherein you have
F
been requested to furnish the following information to this office
for kind perusal of His Excellency the Governor.
I. Date ofreceipt of the notice of the resolution in the Legislative
Assembly.
2. Action taken by the Legislative Assembly on the notice.
G
3. Highlight of the precedents, if any.
Required information have not been received from your end till
date.
Kindly ensure that replies of above points are sent latest by 81h
December, 2015."
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 115
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

74. In the sequence of events, noticed above, it is also pertinent to A
mention, that the Chief Whip of the INC- Rajesh Tacho, filed a petition
on 7.12.2015 seeking disqualification of 14 members of the House
(respondent nos. 2 to 15), belonging to the INC, under Artie.le 191(2)
read with paragraphs 2(l)(a), 6(1) and (2) of the Tenth Schedule, read
with Rules 3(7) and 6 of the Members of the Arunachal Pradesh
B
Legislative Assembly (Disqualification on Ground of Defection) Rules,
1987.
75. It was also pointed out, that the Secretary of the Legislative
Assembly, through a communication dated 8.12.2015, informed the
Governor that a notice of resolution for the removal of the Speaker -
Nabam Rebia, had been received in his office on 19.11.2015. !twas the
c
case of the respondents, that on confirmation of the fact that 13 MLAs
had issued a notice of resolution for the removal of the Speaker on
19.11.2015, the Governor sought legal opinion, with reference to the
proceedings of disqualification initiated by the Chief Whip of the INC,
and also, aboutthe validity and legitimacy of the Speaker sitting in judgment D
over the adjudication of the disqualification proceedings under the Tenth
Schedule, during the pendency of the notice ofresolution for his own
removal. Based on the advice tendered to him, the Governor entertained
an impression, that there was an attempt to subvert the provisions of the
Constitution. The Governor therefore, it was urged, exercised his power
under Article 174( I) suo motu, without any aid and advice, and E
rescheduled the 6th session of the House by preponing it from 14.1.2016
to 16.12.2015.
The first installment oflegal submissions, on behalf of the respondents:
76. Based on the factual premise recorded above, it was the F
contention of Mr. Vikas Singh, and also, Mr. Shekhar Naphade, learned
Senior Advocates, that the actions of high constitutional functiornii:~
referred to above, were a clear testimony of the fact, that the democratic
process in the State of Arunachal Pradesh, was being subverted and
undermined. As such, it became the constitutional obligation of the
Governor, to ensure that the constitutional functioning was restored, as G
would re-establish the purity of the democratic process. Additionally, it
was the submission oflearned counsel, that the action taken in this case,
was akin to the one where the Governor requires the ruling party (or
combination) to demonstrate its majority/strength, on the floor of the
House. The instant action of the Governor, according to learned counsel, H
116 SUPREME COURT REPORTS [2016] 6 S.C.R.

A originated from the same logic and rationale, and th_erefore, could not
have been dealt with differently. Accordingly it was urged, that this
Court shou Id not find fault with the legality or constitutionality of the
action of the Governor, and also, with the Governor's bona fides, ill
having issued the order, and the message dated 9.12.2015.
B 77. It was the contention ofMr. Rakesh Dwivedi, learned Senior
Advocate, th_at the House could have been summonea for any day after
3.12.2015. This because, the minimum notice period of! 4 days mandated
through the first proviso under Article 179, expired on 3.12.2015. And
yet, the Governor did not feel the urgency of summoning the House by
preponing the meeting of the House. It was submitted, that the sense of
c urgency and compulsion, for convening the House assumed a different
complexion when the Chief Whip of the INC - Rajesh Tacho, filed a
petition for the disqualification ofrespondent nos. 2 to 15, on 7.12.2015.
It was therefore, and in the above background, the urgency of the cause
assumed significance. In conjunction with the above, the fact that the
D office of the Secretary of the Legislative Assembly confirmed on
8.12.2015, that he was in receipt of the notice ofresolution for the removal
of the Speaker-Nabam Rebia, dated 19.11.2015, revealed that a political
dimension was bei_ng created, which was clearly undemocratic. The
Governor, according to learned counsel, was well within his rights, in the
above background, to take such action as he in his discretion considered
E appropriate, to re-establish the purity of the democratic process. By the
order dated 9.12.2015, the Governor preponed the meeting of the 6th
session of the Asset'nbly originally scheduled for 14.1.2016, to 16.12.2015.
For taking his order to its logical conclusion, according to learned counsel,
the Governor through his message dated 9.12.2015, regulated the
~F procedure of the House, as would not subvert or undermine the
democratic process.
The fifth sequence of facts:
78. It was urged on behalf of the respondents, that the challenge
raised by the appellants, to the order of the Go~ernor dated 9.12.2015
G (preponing the-summoning of the House fr01!1 14.1.2016 to 16.12.2015),
and to other connected issues, before the High Court by filing Writ
Petition nos.7745 of2015 and 7998 of2015 (on 17.12.2015 and
22.12.2015, respectively), was not only unfair and unreasonable, but was
also illegitimate, and constituted a misuse of the jurisdiction of the High
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 117
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Court. It was the contention of learned senior counsel, that the office of A
the Governor received a letter dated 14.12.2015, from the Speaker of
the Assembly- Nabam Rebia, recording his objection to the order of the
Governor dated 9.12.2015 preponing the summoning of the House from
14.1.2016 to 16.12.2015. In his above letter dated 14.12.2015, the Speaker
also contested the validity of the message of the Governor dated 9.12.2015
B
(providing the manner in which, proceedings of the 6th session of the
Assembly should be conducted).
79. On the same day, i.e., 14.12.2015, the Commissioner to the
Governor received a letter from the Officer on Special Duty to the Chief
Minister, seeking a meeting of the Chief Minister and his Council of
Ministers, and some other MLAs, with the Governor. The said letter
c
was received by the Commissioner at 10.15 p.m. on 14.12.2015, and
was endorsed to the.SSP/ADC to the Governor, on 15.12.2015 at 7.45
a.m. It was also pointed out, that the aforesaid communication was
brought to the notice of the Governor at I 0 a.m. on 15.12.2015. Hp.ving
accepted the aforesaid request, the Governor granted audience to the D
Council of Ministers at 6 p.m. on 15.12.2015 itself. It was submitted,
that 9 Ministers including the Chief Minister came to meet the Governor
.at 6.15 p.m. on 15.12.2015, and committed acts of serious misbehaviour.
Insofar as the details of their alleged misdemeanour are concerned, the
same were disclosed by the Governor, to the High Court in IA No.29 of
2016, in the following words: E

" ..... that at around 6:15 P.M. 9 (nine) ministers including the
Chief Minister Shri Nabam Tuki came to meet the Governor and
the Chief Minister initiated the discussion, all of a sudden few
ministers more particularly the Education Minister Shri. Tapang
Taloh and Transport Minister without any proyocation started F
abusing the Governor forcing his security personnel to interfere.
There was infact an attempt to assault the Governor to force him
to withdraw his order. The Commissioner to the Governor duly
informed the incident to the Director General of Police which
was videographed." G
It was also submitted, that a meeting of the Cabinet was heid on
14.12.2015, with reference to the preponement of the Assembly Session
from 14.1.2016 to 16.12.2015, whereupon the Cabinet passed the
following resolution:
H
118 SUPREME COURT REPORTS [2016] 6 S.C.R.

A "MINUTES OF THE MEETING OF THE CABINET HELD
ON 14rn DECEMBER, 2015 AT 1000 HRS IN THE
CONFERENCE HALL OF THE HON'BLE CHIEF
MINISTER'S RESIDENTIAL OFFICE, ARUNACHAL
PRADESH, ITANAGAR
B MEMBERS OF THE COUNCIL OF MINISTERS PRESENT:-
I. Shri Nabam Tuki, Chief Minister (In Chair)
2. Shri Tanga Byaling, Minister (Home, etc.)
3. Shri Tapang Tai oh, Minister (Education, etc.)
4. Shri Gojen Gadi, Minister (PWD, etc.)
c 5. Shri Takam Pario, Minister (PHED&WS, etc.)
6. Shl·i Rajesh Tacho, Minister (Health & PW, etc.)
7. Shri Phurpa Tsering;Minister (AH&V, etc.)
8. Shri Jomde Kena, Minister (Transport, etc.)
9. Shri TirongAboh, Minister(DoTCL, etc.)
D
IN ATTENDANCE
I. Shri Ramesh Negi, Chief Secretary and Cabinet Secretary
2. Shri Tajom Taloh, Commissioner & Jt. Secretary to the Cabinet
3. Shri Onit Panyang, Secretary (Law & Parliamentary Affairs)
E The Cabinet Secretary welcomed the Hon'ble Chief
Minister and his Council of Ministers.
AGENDA ITEM NO. I. DISCUSSION ON THE MESSAGE
DATED 9rn DECEMBER, 2015 OF THE GOVERNOR OF
ARUNACHAL PRADESH FOR PRE-PONEMENT OF THE
F ASSEMBLY SESSION FROM 14m JANUARY 2016 TO 16rn
DECEMBER, 2015.
The Cabinet has discussed the opinion rendered by the Learned
Advocate General dated 12.12.2015 on the constitutionality of
the order and message of HE, the Governor. After careful
examination, the Cabinet has resolved as under: ,
G
The State Cabinet at its meeting held on L4lh December. 2015
at I 000 hrs in CM's conference hall again discussed in detail the
Order and the Message dated 09.12.2015 of His Excellency the
Governor of Arunahal Pradesh.
Cabinet has received the opinion of the Ld. Advocate General
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 119
AND OTHERS [JAGDISH SINGH KHEHAR, J.)

dated 12.12.2015 and other legal experts on the said Order and A
Message. The Cabinet has perused the said opinion and is in
complete agreement with views of the Ld. Advocate General.
The said Order dated 09.12.2015 issued by His Excellency
the Governor of Arunachal Pradesh is in contradiction to Article
174 read with Article 163 of the Constitution oflndia and Rules 3 B
and 3A of the Rules of Procedure and Conduct of Business of the
Arunachal Pradesh Legislative Assembly. Similarly, the Message
is contrary to Article 175 of the Constitution read with Rule 245
of the said Rules. Moreover, the Hon'ble High Court ofGauhati
has fixed the hearing of the case of resignation of2 MLAs from
the Assembly on 16!!! December, 2015. c
Therefore, the Cabinet resolves .. ;, His Excellency, the
Governor of Arunachal Pradesh to recall and cancel the Order
and the Message dated 9!!! December, 2015 and allow the Session
to be convened on 14!!! January, 2016 as already ordered and
scheduled. D
The Cabinet also resolves to endorse a copy each of this
resolution and legal advice of the Ld. Advocate General to the
.Hon'ble Speaker.
... Secretary (Cabinet)"
80. It was reiterated during the course of hearing, that the meeting E
of the Governor with the Chief Minister and Ministers on 15.12.2015
was duly video-graphed. It was urged, that the entire episode as it had
occurred, can be shown to this Court. The fact that an attempt was
made by the Chief Minister- Nabam Tuki and his Ministers, to assault
the Governor, in order to force him to withdraw the order/message dated F
9.12.2015, it was submitted, was duly brought to the notice of the Director
General of Police, by the Commissioner to the Governor.
81. Insofar as the request which the Chief Minister and some
Ministers had made, in their letter dated 14.12.2015 is concerned, it was
submitted, that the same was an absolute eyewash, because members
G
of the INC still supporting the Chief Minister, had already taken a decision
not to allow the House to meet, as required by the Governor's order
dated 9.12.2015. In order to substantiate this assertion, learned counsel
placed reliance on a letter dated 14.12.2015 addressed by the then
Speaker- Nabam Rebia, to the Minister (Home)- Tanga Byaling. The
aforesaid letter, which has been extracted in the impugned order passed H
120 SUPREME COURT REPORTS [2016] 6 S.C.R.

A by the High Court, is reproduced below:
"Arunachal Pradesh Legislative Assembly
Speaker's Cell
MOST URGENT
B As the Govt. is aware of the fact that a serious law and order
problem is likely to take place on 16'h of December, 2015, in view
of the unconstitutional and unprecedented summoning of the Sixth
Session of Sixty Legislative assembly of Aruifo,;;:il Pradesh by
the Governor of Arunachal Pradesh. It is ghen to learn that
c thousand Of anti-social elements are taking shelter in the state
Capital with the motive to create law and order problem on that
particular date. Illegal arms and ammunition are also reported to
have been collected for the purpose. Sources have revealed that
the main target of the anti-social elements would be to burn
down the legislative building of the state Assembly atNaharlagun.
D
I would therefore request the Hon'ble Minister (Home) Govt.
of Arunachal Pradesh to provide full-proof securitv in and around
the Assembly building w.e.f. J S!l! - J S!l! December, 2015 on top-
most priority basis. It is also requested that no individual including
the Hon'ble Legislators be allowed to enter the Assembly building
E premises on JS!l!,J_Q!l!,_U!l! and J S!l! Dec' 15.
Please treat this as most urgent.
Urgent Sd/-
lllegible 14.12.15
SP/City (NABAM REBIA)
F Deploy sufficient force Speaker
with monitoring system with
the administration of IRBN +
CPMF"
A perusal of the aforesaid communication reveals, that the Speaker asked
G the Home Minister to provide foolproof security and to protect the building
of the State Legislative Assembly. And that, no one, not even MLAs be
permitted to enter the building from 15.12.2015 to 18.12.2015.
Accordingly, the Superintendent of Police (City), Itanagar, in compliance
with the directions issued by the Director General of Police, sufficient
number of IRBN personnel were deployed, to secure the Assembly
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 121
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

building premises from 15.12.2015 to 18.12.2015, so that no individual A
including legislators, could enter the same. It was pointed out, that the
Speaker himself(whose continuation in the State Legislative Assembly
was to be voted upon, on 16.12.2015), being aware of his position, was
making all out efforts, to circumvent the holding of the said meeting.
82. In addition to the letter of the Speaker, referred to above, the B
Speaker also addressed a letter on the same day - 14.12.2015, to the
Governor, wherein he contested the decision of the Governor, to summon
the House by preponing the summoning date from 14.1.2016 to
16.12.2015. In the above letter of the Speaker - Nabam Rebia it was
highlighted, that the provisions of the Constitution, did not authorize the
Governor, to exercise his powers at his own free will. It was asserted,
c
that all the powers of the Governor were to be exercised on the aid and
advice of the Council of Ministers. Forthis, the Speaker had invited the
Governor's attention to Article 163( I). It was also pointed out, that there
was no provision either under the Constitution or the 'Conduct of Business
Rules', which empowered the Governor to summon a meeting of the D
House, by preponing the date already fixed, in consultation with the Chief
Minister and his Council of Ministers. In this·behalf, reliance was placed
on Rule 3 of the 'Conduct of Business.Rules'. It was pointed out, that
the 'Conduct of Business Rules' had been framed under Article 208,
and were binding, not only on the MLAs, but also on the Governor. The
Governor was accordingly urged by the Speaker, not to press for the E
implementation of the order passed by him summoning the House for ·
16.12.2015, "in the interest of upholding the high moral principles enshrined
in the Constitution". It was also pointed out, that while preponing the
session of the- House, the secretariat of the Legislative Assembly had
not been afforded sufficient time, to make necessary arrangements, for F
holding the preponed session. W~threspect to the order/mes1;age issued
by the Governor, it was asserted, that the same was unconstitutional,
and that, it impinged upon the functions of the "Business Advisory
Committee", constituted under Rule 244 of the 'Conduct of Business
Rules'. It was urged, that the Governor's attention was invited to the
fact, that it was the function of the "Business Advisory Committee" G
alone, to schedule the business of the House, and that, it was not within
the realm of the Governor to require, the notice of resolution for the
removal of the Speaker, to be taken up as the first item, on the agenda
for the day. The Speaker - Nabam Rebia also invited the attention of
the Governor to the resolution of the State Cabinet, in the meeting held H
122 SUPREME COURT REPORTS [2016] 6 S.C.R.

A on 14.12.2015. It was submitted, that for all the above reasons, the
Governor was requested to refrain from interfering with the functioning
of the Legislative Assembly. Based on the above communications, it
was submitted, that the Speaker was bent upon frustrating, any final
consideration on the notice ofresolution for his removal.
B A further instalment oflegal submissions, on behalf of the respondents:
83. It was submitted by Mr. Rakesh Dwivedi, learned senior
counsel, that the appel !ants were fully justified in their reference to Article
154 which deals with the "executive power" of the Mate, ang which
also explicates, that the same is vested with the Governor. He also
c acknowledged, that the above "executive power" can be exercised by
the Governor, in the manner expressed in Article 163 - on the aid and
advice of the Council of Ministers with the Chief Minister as the head.
It was however submitted, that the exercise of functions by the Governor
at his own discretion, is recognized in Article 163(2) itself, which
contemplates constitutional decision making "in his discretion" without
D any aid and advice.
84. It was urged, that insofar as the present controversy is
concerned, a correct understanding ofAfticle 163(2) would be of extreme
relevance. Under Article 163(2), according to learned counsel, the
Governor has the authority to act on his own, in respect of matters where
E the Governor is mandated to act in his own discretion "by or under" the
Constitution. It was further submitted that when a question arises, as to
whether such discretion is vested with the Governor "by or under" the
Constitution, the decision of the Governor, on the above question, is fipal
and binding. It was submitted, that Article 163(2) postulates three
F situations where, as an exception to the general rule, the Governor can
act at his own will and discretion. Firstly, when he is required to discharge
his functions by the mandate of some provision of the Constitution itself,
in his own discretion. Secondly, when the Governor is assigned functions
on the basis of enactments made under the Constitution, where he is
mandated to discharge his functions by exercising his own discretion.
G And thirdly, where he is impliedly required to act in his own discretion.
85. It was pointedly contended, that in the present controversy,
the question that needs to be determined is, whether Article 174 which
vests the Governor with the authority to summon the Assembly, can be
envisioned as one of the provisions, which requires the Governor to
H impliedly act at his own discretion? Learned counsel acknowledged, that
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 123
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the exercise of discretion by the Governor in the present case did not fall A
within the first two categorizations, postulated in his submission. Insofar
as the implied power of the Governor with reference to the summoning
of the House (vi de order dated 9.12.2015) is concerned, the first and
foremost submission canvassed was, that a clear distinction needed to
be drawn between Article 174(1), which postulates the authority to
B
summon the House, and Article 174(2) which vests the authority to
prorogue or dissolve the Assembly. In dealing with the distinction between
the two, it was pointed out, that the process of summoning a House can
never be considered to be anti-democratic. Summoning the House,
according to learned counsel, inevitably supports the cause of the
democratic process. The same, according to learned counsel, may not c
be true with reference to proroguing or dissolving the House. When a
House is prorogued or dissolved, the democratic process is sought to be
deferred for the time being, or till the re-election of the members of the
Legislative Assembly, respectively.
86. Learned senior counsel also pointedly focused on Article 179, D
and more particularly, sub-article (c) thereof. It was submitted, that an
incumbent Speaker (or Deputy Speaker) can be removed under sub-
article (c) of Article 179, by a resolution of the Assembly passed by a
majority of " ... all the then members ... " of the Assembly. It was
submitted, that the issue of removal of the existing Speaker (or Deputy
Speaker) contemplated under Article 179, should not be confused with E
the exercise of "executive power" of the State. It was asserted, that
the functions of an Assembly could be placed in two entirely separate
categories. Firstly, its purely legislative activities. Legislative activity,
according to learned counsel, included the responsibility of the "executive
power of the State" represented through the Chief Minister and his F
Council of Ministers, to determine the field and nature oflegislation, to
be brought before the House for legislation. It was submitted, that in the
discharge of the aforesaid activity, the Governor can have no role
whatsoever. The realm of legislative activity, ac ~ording to learned
counsel, also included the actual consideration ofa Bill. Herein again, it
was submitted, that the Governor would have no role, except to the G
extent contemplated under Article 200, wherein, when a Bill is passed
by the House, the same has to be approved by the Governor. And only
when the Governor gives his assent to the Bill, the same assumes the
status of a legislative enactment. It was pointed out, that Article 200
contemplates a situation, where the Governor can return the Bill with a H
124 SUPREME COURT REPORTS [2016] 6 S.C.R.

A message, requiring the House to reconsider the same, by examining the
suggestions made by the Governor. This limited responsibility cast on
the Governor, it was contended, fell within the legislative process. The
Governor before whom a Bill (passed by the Legislative Assembly) is
placed, has also the right to reserve the Bill, for the consideration of the
President. This action of the Governor, according to learned counsel,
B
must be accepted as a further responsibility of the Governor within the
legislative process. It was submitted, that in all the functions vested
with the Governor under Article 200, are to be discharged by the Governor,
in his independent discretion, and not on any guidance or advice. This,
according to learned counsel, illustrates the third category of the
c Governor's functions, wherein the Governor is impliedly required to act
in his own discretion, even though he is not expressly so required, by any
written mandate emerging from Article 200.
87. Secondly, it was submitted, that there are functions and
activities of the House, which are separate and distinct from its legislative
D functioning. The said activities may have no role, of the Chief Minister
or his Council of Ministers. Illustratively, it was contended, that the
issue of removal of a Speaker(or Deputy Speaker) under Article l 79(c)
is an exclusive function of the House, but is independent of its legislative
business. Insofar as the issue of removal of the Speaker (or the Deputy
Speaker) is concerned, it was acknowledged, that neither the Chief
E
Minister nor his Council of Ministers has any determinative role in the
matter. The Speaker (or the Deputy Speaker) can be removed from his
office, only" ... by a resolution of the Assembly passed by a majority of
all the then members of the Assembly.". Insofar as the present
controversy is concerned, it was pointed out, that the notice of resolution
F for the removal of the Speaker, dated 19.11.2015, was brought by 13
members of the House. According to learned counsel, it is necessary to
understand, the aforesaid submission, in the background of the position
occupied by the Speaker. It was emphasized, that a Speaker is a neutral
arbiter, between the ruling Government (which has the majority in the
Assembly), and the opposition parties (which constitute the minority).
G
88. In continuation, learned senior counsel, invited our attention to
Article 180. It was pointed out, that sub-article ( l) thereof provides,
that if the office of the Speaker is vacant, the duties of "the office" of
Speaker, are to be performed by the Deputy Speaker. And if the office
of the Deputy Speaker is also vacant, the duties of"the office" of Speaker,
H
NABAM REBlA, AND BAMANG FELIX v. DEPUTY SPEAKER 125
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

are to be performed by a person appointed by the Governor, out of the A
existing MLAs. It was highlighted, that in the above exigency, where
the question of discharging duties of the Speaker arises, the Governor
has been expressly vested with a constitutional responsibility. Based on
the above analysis, it was submitted, that insofar as the non-legislative
duties of the Assembly are concerned, the Governor has also be·en
B
ascribed some specific responsibilities. And since the Chief Minister
and the Council of Ministers have no role in the aforestated action/activity,
the Governor need not make the choice of the person, to discharge the
duties of Speaker, on the basis ofany aid and advice of the Chef Minister
and his Council of Ministers.
89. 1t was asserted, that the position prevailing after the conclusion
c
of the 5th session of the Assembly on 21. I 0.2015, did occasion the
applicability of sub-article (2) of Article 180, in the peculiar facts of this
case. As such, it was urged, that it would be wholly incorrect to assume,
that the action taken by the Governor with reference to the office of
Speaker was extraneous, specially when considered with reference to D
the relevant provisions of the Constitution. ·
90. Learned senior counsel seriously questioned the action of the
Speaker in locking the premises of the Assembly, and thereby, consciously
stalling the democratic process of the House. It was asserted, that ifthe
Speaker was desirous of enforcing the order of disqualification (of 14 E
MLAs) by himself, under the Tenth Schedule, he may well have prevented
the entry of the said 14 disqualified members into the premises of the
House. It was submitted, that the action of the Speaker in disallowing
the consideration of the notice of resolution for his removal, by preventing
entry of all the legislators, into the building of the House, was really an
action aimed at frustrating the democratic process. And, an escape F
route with reference to the notice of resolution for his own removal. It
was pointed out, that the Speaker being an elected member of the
Assembly, discharges vital legislative and non-legislative functions. His
non-legislative functions include the duties as head of the Secretariat of
the Assembly, and in addition thereto, his quasi-judicial functions are G
those postulated under the "Tenth Schedule", of the Constitution. The
legislative functions, as well as, the duties vested with the Speaker under
the Tenth Schedule, have a direct nexus to the democratic process, and
as such, the discharge of the above responsibilities, while his position as
a Speaker of the House was under challenge, constituted a serious
H
126 SUPREME COURT REPORTS [2016] 6 S.C.R.

A constitutional impropriety.
91. On the duties assigned to the Governor under Article 174, it
was submitted, that it was improper and unjustified to describe the action
of the Governor in summoning the House vide order dated 9.12.2015, as
anti-democratic. According to learned counsel, only anti-democratic
B forces would contest a decision of the Governor, in summoning the House.
It was asserted, that a Government which is confident of its majority on
the floor of the House, would have nothing to fear, when the House is
summoned. The summoning of the House by the Governor, at his own
discretion, would be inconsequential when;~ the Government can establish
its numbers. For exactly the same reason, it was submitted, that the
c action of the Governor in summoning the House, for the consideration of
a notice of resolution for the removal of the Speaker would be
inconsequential, ifthe Speaker enjoyed the support of the majority of the
members of the House. It was pointed out, that the action of shying
away and stalling consideration, of a resolution for the removal of the
D Speaker, is an action which could be justifiably described as anti-
democratic. It was submitted, that a party in power which claims to
e1~oy the majority, cannot be aggrieved in a situation where the Governor
requires the Government to establish its majority, through a floor test.
Likewise, a Speaker who enjoys the confidence of the House, cannot be
an aggrieved party, when the Governor calls for the consideration of a
E notice ofresolution for his removal.
92. Referring to the action of the Governor, based on the order
dated 9.12.2015, it was submitted, that even in the worst case scenario,
the action of the Governor could not be described, as an action in conflict
with any provision of the Constitution, or even a constitutional norm/
F propriety. It was submitted, that the notice ofresolution for the removal
of the Speaker was submitted on 19.11.2015. The Governor had made
repeated efforts in writing, to confirm, whether such a notice had actually
been submitted to the Secretary of the Legislative Assembly. Initiating
action for summoning the House, by ordering its preponement, according
G to learned senior counsel, could be an option only if, the concerned 13
MLAs had actually submitted the above notice dated 19.11.2015, to the
Secretary of the Legislative Assembly. Merely because a copy thereof
had been furnished to the Governor, he could not have initiated any action.
In spite of the high office of the Governor, and despite repeated
communications were sent by the Governor, seeking information about
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 127
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the factual position, whether a notice ofresolution for the removal of the A
Speaker - Nabam Rebia had been received, the same remained
unanswered. Finally, the factual position came to the notice of the
Governor, only on 8.12.2015, on the receipt of a communication from
the Secretary of the Legislative Assembly. By this time the postulated
14 days' notice period, before such notice could be taken up for
B
consideration, had expired (on 3.12.2015). Allowing the Speaker to
discharge functions pertaining to the Secretariat of the Assembly, or
under the Tenth Schedule to the Constitution, while his own position was
under challenge, would not only be unconstitutional, but also
undemocratic. It was urged, that it was in the aforesaid background,
and based on the aforesaid understanding, and also to ensure that the c
functioning of the House was carried out in consonance with established
democratic norms, that the Governor (in exercise of the powers vested
~ith him under Article 174), had ordered the summoning of the House
for 16.12.2015 (by preponing the 6th session of the Assembly, earlier
scheduled for 14.1.2016). It was therefore contended, that the submissions
D
advanced at the behest of learned counsel for the appellants, deserved
to be rejected.
93. Mr. Rakesh Dwivedi, learned senior counsel, having concluded
his submissions with reference to the order of the Governor dated
9.12.2015, similarly endeavoured to justify the message of the Governor
dated 9.12.2015. His submissions to support the message dated 9.12.2015, E
were the same as in support of the order of the Governor dated 9.12.2015.
According to learned counsel, the message was clear, that the Governor
had authorised the House, to permit the resolution for removal of the
Speaker to be moved. The message required the members of the
Assembly, to discuss and put the same to vote, as" ... the first item on F
the agenda of the House at the first sitting of the Sixth Session ... ". The
Governor also required the Deputy Speaker, to hold the proceedings
peacefully.and truthfully, so as to ensure that they were conducted fairly.
The message of the Governor, required the proceedings to be video-
graphed. It was submitted, that the message of the{Jovernor, would not
only secure the enforcement of the democratic process, but would also G
ensure transparency and fairness. It was therefore the assertion oflearned
senior counsel, that no fault whatsoever could be found with the message
of the Governor.
94. Having submitted thus far, learned senior counsel, pointedly
H
128 SUPREME COURT REPORTS [2016) 6 S.C.R.

A referred to p~ragraph 5 of the message dated 9.12.2015. It was conceded,
that the contents of paragraph 5, were instructions to the House, that
until the 6th session (to commence on 16.12.2015) of the Legislative
Assembly was prorogued, no Presiding Officer would alter the party
composition of the House. It was acknowledged, that this could
only be understood to mean, that disqualification proceedings under the
B "Tenth Schedule", would have to await the outcome of the motion against
the Speaker under Article 179(c ). In order to demonstrate the propriety
and constitutional validity of paragraph 5 of the message, it was submitted,
that once it is concluded (- that is, if this Court, on accepting the
submissions advanced on behalf of the respondents, so concludes), that
c the Governor had the discretion to summon or prepone the sitting of the
Assembly under Article 174(1) read with Articles 163 and l 79(c), then it
would also be up to the Governor to decide when and/or where, the
House should meet. It was pointed out, that the Governor is undisputedly
a high constitutional functionary. And as such, his decisions could neither
be taken lightly, nor be easily interfered with. By inviting the Court's
D attention to Article 174, it was urged, that the above provision vests
responsibility in the Governor to summon, prorogue or dissolve the
Assembly. The Governor is mandated to summon the Legislative
Assembly "at such time and place as he thinks fit". The instant
connotation in Article 174, makes it abundantly clear, that the Governor
E has to discharge the above function, as he in his own discretion, considers
appropriate. Premised on the aforesaid· foundation, it was contended,
that the instant discretion conferred on the Governor, could not be
subservient to any aid and advice. It was pointed out, that the fixation of
time for sitting of the Legislative Assembly, determined by the Governor
under Article 174, was an issue on which reasonable persons could differ
F
widely. As such, .it would not be proper for any Court to interfere with,
the time and place fixed by the Governor in summoning the Assembly.
95. On the subject of the power of the judicial review, with
-- reference to the exercise of discretion by the President (in relation to
the removal of a Governor), it has to be accepted, that the power of
G judicial review has to be limited to situations wherein, it could be
established that the President had exercised his discretion wantonly,
whimsically or arbitrarily. It was urged that the same position would
apply to decisions of Governors as well. It was submitted, that the
appellants before this Court, were obliged to establish, that the Governor
H had acted deliberately in an unprincipled manner, and that, the action of
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 129
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Governor would impair the constitutional trust assigned to him. On A
the present aspect of the matter, learned senior counsel placed reliance
on 8.P. Singhal v. Union oflndia8, and invited our attention to the following
observations recorded therein:
"71. When a Governor holds office during the pleasure of the
Government and the power to remove at the pleasure of the B
President is not circumscribed by any conditions or restrictions, it
follows that the power is exercisable at any time, without assigning
any cause. However, there is a distinction between the need for a
cause for the removal, and the need to disclose the cause for
removal. While the President need not disclose or infonn the cause
for his removal to the Governor, it is imperative that a cause must c
exist. If we do not proceed on that premise, it would mean that
the President on the advice of the Council of Ministers, may make
any order which may be manifestly arbitrary or whimsical or mala
fide. Therefore, while no cause or reason be disclosed or assigned
for removal by exercise of such prerogative power, some valid D
cause should exist for the removal. Therefore, while we do not
accept the. contention that an order under Article 156 is not
justiciable. we accept the contention that no reason need be
assigned and no cause need be shown and no notice need be
issued to the Governor before removing a Gove.mar.
E
xxx xxx xxx
76. This Court has examined in several cases, the scope ofjudicial
review with reference to another prerogative power - power of
the President/Governor to grant pardon, etc. and to suspend, remit
or commute sentences. The view of this Court is that the power
to pardon is a part of the constitutional scheme, and net an-act of F
grace as in England. It is a constitutional responsibility to be
exercised in accordance with the discretion contemplated by the
context. It is not a matter of privilege but a matter of perfonnance
of official duty. Al 1pub! ic power including constitutional power,
shall never be_ exercisable arbitrarily or mala fide. While the G
President or the Governor may be the sole Judge of the sufficiency
of facts and the propriety of granting pardons and reprieves, the
power being an enumerated power in the Constitution, its limitations
must be found in the Constitution itself. The Courts exercise a

• (2010) 6 sec 331 H
130 SUPREME COURT REPORTS [2016] 6 S.C.R.

A limited power of judicial review to ensure that the President
considers all relevant materials before coming to his decision. As
the exercise of such power is of the widest amplitude, whenever
such power is exercised, it is presumed that the President acted
properly and carefully after an objective consideration of all aspects
of the matter. Where reasons are given, the Court may interfi;re
B
ifthe reasons are found to be irrelevant. However, when reasons
are not given, the Court may interfere only where the exercise of
power is vitiated by self-denial on wrong appreciation of the full
amplitude of the power under Article 72 or where the decision is
arbitrary, discriminatory or mala fide [vidl! Maru Ram v. Union of
c India 1981 (I) SCC I 07, Kehar Singh v. Union of India 1989 (I)
sec 204, etc.].
xxx xxx xxx
82. The President in exercising power under A11icle 156(1) should
act in a manner which is not arbitrary, capricious or unreasonable.
D In the event of challenge of withdrawal of the pleasure, the Court
will necessarily assume that it is for compelling reasons.
Consequently, where the aggrieved person is not able to establish
a prima facie instance of arbitrariness or malafides, in his removal,
the Court will refuse to interfere. However, where a prima facie
E case of arbitrariness or malafides is made out, the Court can
require the Union Government to produce records/materials to
satisfy itself that the withdrawal of pleasure was for good and
compelling reasons. What will constitute good and compelling
reasons would depend upon the facts of the case. Having regard
to the nature of functions of the Governor in maintaining centre-
F state relations, and the flexibility available to the Government in
such matters, it is needless to say that there will be no interference
unless a very strong case is made out. The position, therefore, is
that the decision is open to judicial review but in a very limited
extent.
G 83. We summarise our conclusions as under:
(i) Under Article 156( 1), the Governor holds office during the
pleasure of the President. Therefore, the President can remove
the Governor from office at any time without assigning any reason
and without giving any opportunity to show cause.
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 131
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

(ii) Though no reason need be assigned for discontinuance of the A
pleasure resulting in removal, the pow.er under Article 156( I) cannot
be exercised in an arbitrary, capricious or unreasonable manner.
The power will have to be exercised in rare and exceptional
circumstances for valid and compelling reasons. The compelling
reasons are not restricted to those enumerated by the petitioner
B
(that is physical/mental disability, corruption and behaviour
unbecoming of a Governor) but are of a wider amplitude. What
would be compelling reasons would depend upon the facts and
circumstances of each case.
\
(iii) A Governor cannot be removed on the ground that he is out of
sync with the policies and ideologies of the Union Government or c
the party in power at the Centre. Nor can he be removed on the
ground that the Union Government has lost confidence in him. It
follows therefore that change in government at Centre is not a
ground for removal of Governors holding office to make way for
others favoured by the new government. D
(iv) As there is no need to assign reasons, any removal as a
consequence of withdrawal of the pleasure will be assumed to be
valid and will be open to only a limited judicial review. If the
aggrieved person is able to demonstrate prima facie that his
removal was either arbitrazy. malafide, capricious or whimsical. . E
the Courtwill call upon the Union Government to disclose to the
Court, the material upon which the President had taken the decision
to withdraw the pleasure. If the Union Government does not
disclose any reason, or if the reasons disclosed are found to be
irrelevant, arbitrary, whimsical, or malafide, the Court will interfere.
However. the court will not interfere merely on the ground that a F
different view is possible or that the material or reasons are·
insufficient."
Based on the legal position declared by this Court, it was submitted, that
the prayer addressed by the appellants, to interfere with the discretion
exercised by the Governor in his order, and his message dated 9.12.2015, G
ought to·be rejected.
96. Learned senior counsel further contended, that interference
with the action of the Governor could not be based on any alleged personal
malafides. It was asserted, that established malice in law only, could
H
132 SUPREME COURT REPORTS [20 I 6] 6 S.C.R.

A lead to an adverse inference. In this behalf, reliance was placed on S.R.
Bommai v. Union of Jndia9 , wherein it has been held as under:
"~90. We find ourselves unable to agree with the High Court except
on points (I) and (2). To begin with, we must say that question of
'personal bonafides' of Governor is really irrelevant.
B 391. We must also say that the observation under point (7) is
equally misplaced. It is true that action under Article 356 is taken
on the basis of satisfaction of the Union Council of Ministers but
on that score it cannot be said that 'legal malafides' of the Governor
is irrelevant. When the article speaks of the satisfaction being
formed on the basis of the Governor's report, the legal malafides,
c if any, of the Governor cannot be said to the irrelevant. The
Governor's report may not be conclusive bttt its relevance is
undeniable. Action under Article 356 can be based only and
exclusively upon such report. Governor is a very high constitutional
functionary. He is supposed to act fairly and honestly consistent
D with his oath. He is actually reporting against his own government.
It is for this reason that Article 356 places such implicit faith in his
report. If, however: in a given case his report is vitiated by legal
malafides, it is bound to vitiate the President's action as well.
'
Regarding the other points made in the judgmenfofthe High Court,
we must say that the High Cou1t went wrQng in law in approving.
E
and upholding the Governor's report and the action of the President
under Article 356. TJ1e Governor's repo11 is vitiated by more than
one assumption totally unsustainable in law. The Constitution does
not create an obligation that the political party forming the ministry
should necessarily have a majority in the Legislature. Minority
F Governments are not unknown. What is necessary is that that
government should enjoy the confidence of the House. This aspect
does not appear to have been kept in mind by the Governor. Secondly
and more importantly, whether the Council of Ministers has lost
the confidence of the House is not a matter to be determined by
the Governor or for that matter anywhere else except the floor of
G
the House. The principle of democracy underlying our Constitution
necessarily means that any such question should be decided on
the floor of the House. The House is the place where the
democracy is in action. It is not for the Governor to determine the
said question on his own or on his own verification. This is not a
H 9
(1994)3sec1
)

NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 133
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

matter within his subjective satisfaction. It is an objective fact A
capable of being established on the floor of the House. It is
gratifying to note that Sri R. Venkataraman, the former President
oflndia has affirmed this view in his Rajaji Memorial Lecture
(Hindustan Times dated February 24, 1994)."
Based on the above proposition declared by this Court, it was urged, that B
the submissions advanced on behalf of the appellants do not justify any
interference, with the impugned actions of the Governor.
97. On the issue of discretion, learned senior counsel, placed
reliance on Article 163(2). ,Based thereon, it was submitted; that the
Governor's discretion, for all intents and purposes, must be deemed to c
be final. It was submitted, since Article 163(2) itself postulates, that
"the decision of the Governor in his discretion shall be final, and the
validity of anything done by the Governor shall not be called in question
on the ground that he ought or ought not to have acted in his discretion",
by itself absolves the Governor from a challenge to the discretion
exercised by him. It was submitted, that Article. 163(2) was neither a D
defunct nor a redundant provision, and as such, it could neither be
overlooked nor ignored. It was contended, that the words employed in
Article 163(2) must be given due ~eightage. And ifthat was to be done,
there could be no doubt, thatthe discretion exercised by the Governor
under Article 163(2), would have to be considered in-a manner, as would E
protect it from the scope of any challenge.
98. With reference to the Governor's message dated 9.12.2015,
it was submitted, that the same was justified under Article 175(2),
whereunder, the Governor's message can be "with reference to a Bill
then pending in the Legislature or otherwise". Article 175(2) by itself
F
makes it abundantly clear, that messages are not limited to the Bills
pending before the House. But could extend to and include other matters.
Learned counsel clarified, that the authority vested with the Governo~
under Article 200, should not to be confused by reference to the words
"or otherwise" usect"in Article 175(2). The message sent by the Governor
can also re.late to a Bill under Article 200, as is apparent on from the G
expression "with respect to a Bill then pending in the Legislature" used
in Article 175(2). It was submitted, that reliance plac;ed by the appellants
on Union of India v. Valluri Basavaiah Chowdhary1°, for asserting that
the Governor could not send any message under Article 175(2), with
'" ( t 979) J sec 344 H
134 SUPREME COURT REPORTS [2016] 6 S.C.R.

A regard to a resolution pending before the Legislative Assembly, was
wholly misconceived. It was pointed out, that the controversy dealt with
in the above judgment pertained to Article 252, and in the context of the
above provision, this Court held, that the State Legislature meant only
the House of the Legislature. Insofar as the present controversy is
concerned, it was submitted, that the same pertained to a notice of
B
resolution for the removal of the Speaker under Article 179(c). It was
pointed out, that the words "or otherwise" referred to in Article 175(2)
had a wide import, and that, there was no justification whatsoever to
limit the same, so as to unnecessarily curtail the authority of the Governor,
to that which is contemplated under Article 200. It was submitted, that
c if the power of the Governor with reference to messages, was to be
limited to the responsibility enshrined in him under Article 200, then the
words "or otherwise" expressed in Article 175(2) would be superfluous
and otiose. Additionally it was contended, that Article· 175(2) also
mandates, that the Legislative Assembly would deal with a message
received from the Governor "with all convenient despatch", and would
D
take a call th!<.reon, as may be "required by the message to betaken into
consideration". It was therefore contended, that a message addressed
by the Governor under Article 175(2), to the State Legislative Assembly,
was not actually in the nature of a command. And yet, the same was
bound to be taken into consideration "with all convenient despatch". In
E the above view of the matter, it was submitted; that the term "or
otherwise" could not be ascribed a narrow or limited meaning, but was
bound to be extended the widest amplitude, in harmony with the related
provisions of the Constitution.
99. It was pointed out,. that in the past also messages sent by the
F Governor were assailed through judicial proceedings. In this behalf,
reference was made to K.A. Mathialagan v. P. Srinivasan 11 , wherein
also, the message sent by the Governor pertained to a vote of no
confidence against the Speaker. Reference was also made to Pratapsing
Raojirao Rane v. Governor ofGoa 1 ~, wherein also, the message of the
Governor pertained to a notice ofresolutlon for the removal of the Speaker.
G It was submitted, that the message (dated 9.12.2015) which has been
assailed by the appeJlants in the present case, suggested that the House
should not be adjourned, till the notice of resolution for the removal of
the Speaker stood determined finally, one way or the other. It was
11
AIR 1973 (Madras) 371
H " AIR 1999 (Born.) 53
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 135
AND OTHERS [JAGDISH SINGH KHEHAR, J.)

submitted, that one of the proposed requirements contained in the message A
of the Governor was, that the notice ofresolution for the removal of the
Speaker would be taken up as the first item on the agenda. It was
pointed out, that the Governor's message was merely to bring to the
notice of the House the procedure that the House, was required to fo)low.
It was urged, that under Rule 153 of the 'Conduct of Business Rules' a
B
notice ofresolution for the removal of the Speaker, had to be included in
the list of business before any other business for the day, could be taken
up. Reference was also made to Rule 151 of the 'Conduct of Business
Rules', which mandates that after a notice ofresolution for the removal
of a Speaker is tabled, the House would not be adjourned till the motion
of no confidence had been finally disposed of. In the above view of the c
matter, it was pointed out, that requiring the Assembly to take up the
notice of resolution for the removal of the Speaker, as the first item in
the agenda (in the message dated 9:12.2015), cannot be termed as an
action atthe hands of the Governor, based on his own whims and fancies.
It was urged, that the message needed to be viewed as an advice tendered
D
to the Assembly, so as to deal with an important issue, in consonance
with the provisions of the 'Conduct of Business Rules'.
100. Learned senior counsel then invited the Court's attention to
the second direction in the message dated 9.12.2015, whereby the Deputy
Speaker was obliged to preside over the House, from the Jirst moment
E
of the first sitting of the House. It was submitted, that the above noted
action was also in the nature of an advice, so as to make sure that the
procedure adopted before the House would not infringe Article 181 (I)
read with Article 182. lt"was pointed out, that the above provisions
postulate inter alia, that the Speaker would not preside over the
proceedings of the Assembly, wherein a resolution for his own removal, F
was to be considered. As such, it was submitted, that during the period
when the notice of resolution for the removal of the Speaker - Nabam
Rebia, was under consideration of the House, the Deputy Speaker was
liable to preside over the proceedings of the House. In this behalf, while
it was acknowledged, that even the Deputy Speaker - Tenzing Norbu
Thongdok, should similarly be treated as being debarred from presiding G
over the proceedings of the House, because a resolution for his (the
Deputy Speaker's) removal from office was pending consideration. It
was however submitted, that the above factual position is not correct, as
no notice ofresolution forthe removal of the Deputy Speaker, had actually
been moved. It was submitted, that the fact that a notice of resolution H
136 SUPREME COURT REPORTS [2016] 6 S.C.R.

A for the removal of the Deputy Speaker (alleged to have been presented
to the Secretary of the Legislative Assembly, on 16.11.2015), was a
complete falsity, as despite repeated reminders addressed by the
Governor, seeking a copy of the notice of resolution for the removal of
the Deputy Speaker, the same was not furnished to him. It was
emphasized, that even before this Court, the appellants have failed to
B
establish, that such a notice ofresolution for the removal of the Deputy
Speaker - Tenzing Norbu Thongdok, had ever been moved. It was
therefore urged, that it was wholly legitimate fo~ the G·wernor, in the
facts of the present case, to require the Deputy Speaker 0fthe Assembly,
to preside over the proceedings, of the notice ofresolution for the removal
c of the Speaker -.Nabam Rebia.
I 01. It was-also the contention of learned senior counsel, that
Speakers against whom resolutions for their removal have been moved,
are known to have resorted to unsavoury means, to defer consideration
thereon. In this behalf, learned counsel placed reliance on State of Punjab
D v. Satya J:al Dang 13, the K.A. Mathialagan case 11 , and Nipamacha Singh
v. Secretary, Manipur Legislative Assembly!•.
I 02. It was also submitted, that the Tenth Schedule, was added to
the Constitution, by the Constitution (Fifty-second Amendment) Act, 1985
which came into force with effect from 1.3 .1985. It was pointed out,
E that under the Tenth Schedule power is vested with Speaker alone, for
exercising quasi-judicial functions (under Paragraph 6, of the Tenth
Schedule). It was contended, that any misuse of the power vested with
the Speaker under the Tenth Schedule, could result in derailing the
democratic process of the concerned State. Insofar as the present
controversy is concerned, it was pointed out, that the concerned Speaker
F - Nabam Rebia, issued notices to 14 MLAs belonging to the INC, for
their disqualification on 7.12.2015, and thereby, took active steps to derail
the democratic process, specially when, a resolution for his own removal
had already been moved (on 19.11.2015). It was asserted, that the
action of the Governor in requiring, that".~. no Presiding Officer shall
G alter the party composition in the House" in the message dated 9.12.2015,
was only aimed at preserving the democratic process, so that the Speaker
1 by exercising his quasi-judicial powers under the Tenth Schedule, would

'not so change the composition of the House, as would favourably tilt the
motion for his removal, in his own favour. It was accordingly asserted,
13
AIR 1969 SC 903
H 1
' AIR 2002 (Gauhati) 7
NABAM REBIA, AND BAMANG FELIX .v. DEPUTY SPEAKER 137
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

that no motive should be attributed to the messl!ge of the Governor dated A
9.12.2015, more particularly, paragraph 5 thereof. lt was submitted,
that save and except the ultimate desire of the Governor to preserve the
democratic process, the message dated 9.12.2015 had no other fall out/
consequence. It was also contended, that as the question of removal of
the Speakerwas pending consideration before the Hou5€, it would have
B
been a serious constitutional impropriety on the part of the Speaker, to
carry on presiding over the proceedings of the House, and more
particularly, to conduct or continue with the quasi-judicial functions vested
with him, under the Tenth Schedule. In conclusion, it was pointed out,
that the action proposed by the Governor, through paragraph 5 of the
message dated 9.12.2015, was merely aimed at maintaining the c
constitutional integrity of the House, and preserving the constitutional
morality expected of the Speaker of the House.
I 03. It was asserted by learned senior counsel, that it was apparent
from the facts and circumstances of the present case, that the Speaker
had entertained a petition for disqualification, against 14 MLAs belonging. D
to the INC on 7.12.2015, well after, the Governor had sought information,
about the notice for the removal of the Speaker. It was submitted, that in
the first instance, the Secretary of the Legislative Assembly, maintained
complete silence, and chose not to respond to the letter(s) of the
Governor. Finally through a communication dated 7.12.2015, the
Secretary of the Legislative Assembly wrote to the Governor, informing
E
him that the Speaker was on tour, and the notice of resolution for his
own removal (for the removal of the Speaker - Nabam Rebia), as well
as, that of the Deputy Speaker - Tenzing Norbu Thongdok, were in the
personal custody of the Speaker - Nabam Rebia. In the above view of
the matter, it was submitted, that it was natural for the Governor to have F
addressed the message dated 9.12.2015, with a clear description of the
manner in which the proceedings of the House were to be conducted,
when the 6th session commenced on 16.12.2015. This was done by the
Governor, according to learned counsel, only to ensure that procedure
adopted by the House, was in consonance witf1 the provisions of the
Constitution, and the 'Conduct of Business Rules'. G

104. Based on the aforementioned submissions, it was the
contention of Mr. Rakesh Dwivedi, learned senior counsel, that the
prayers made by the appellants before this Court, being qevoid of any
merit, deserved to be rejected.
138 SUPREME COURT REPORTS [2016] 6 S.C.R.

A I 05. Mr. T.R. Andhyarujina, learned Senior Advocate, entered
appearance on behalf of respondent no. 16 - the Governor of the State
of Arunachal Pradesh. It would be pertinent to mention, that the
Governor had entered appearance before the High Court, by moving an
interlocutory application, for the limited pur-pose ofjustifying his order
and message dated 9.12.2015, and also, in order to demonstrate that he
B
was unaware of the notice of the resolution dated 16.11.2015, moved
for the removal of the Deputy Speaker - Tenzing Norbo Thongdok.
The sixth sequence of facts:
I 06. It was contended by learned senior counsel, that there had
c been political turmoil in the State of Arunachal Pradesh, since March/
April, 2015. It was pointed out, thatthe situation got worst in September,
2015, when a group of 21 MLAs belonging to the INC, clamoured for a
change of guard, which was targeted at the Chief Minister - Nabam
Tuki. It was submitted, that the above 21 MLAs had camped in Delhi
for three months, so as to press their claim before the central leadership
D (of the National Congress Party). During the above period, all the 21
MLAs belonging to the INC, had refused to attend meetings of the
Congress Legislature Party in the State of Arunachal Pradesh. This
factual position, according to learned senior counsel, has been
acknowledged by the appellants themselves, even before this Court.
E 107. It was submitted, that on 14.9.2015, 17 of the 21 MLAs
belonging to the INC, were invited for an informal dinner by the Chief
Minister-Nabam Tuki, at his official residence. At the aforesaid dinner,
they were coerced into signing identically worded resignation letters. It
was submitted, that the Speaker - Nabam Rebia, was also present at
F the dinner hosted by the Chief Minister. It was brought out, that rather
than accepting all the 17 resignation letters, the Speaker- Nabam Rebia,
accepted resignation letters of only two of the MLAs - Gabriel D. Wangsu
and Wanglam Sawin. Having accepted the two resignation letters, the
Speaker issued a notification on I. I 0.2015, declaring that their respective
Assembly segments, had been rendered vacant (under Article 190). It
G was pointed out, that on 11.10.2015, the aforesaid MLAs addressed a
letter to the Governor complaining about the manner in which their
resignation letters were got signed under coercfon, as also, the illegal
acceptance thereof. It was pointed out, that the aforesaid letter(s) were
available on the record. The letters referred to, are not being extracted
H, herein for reasons of brevity. It was submitted, that the said two members
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 139
AND OTHERS [JAGDISH .SINGH KHEHAR, J.]

of the House, whose resignations were accepted, approached the Gauhati A
High Court, by filing Writ Petition (C) No.6193 of2015. On 7.10.20J5,
the High Court passed an interim order staying the orders accepting
their resignations. The above writ petition, it was submitted, was
dismissed by the High Court on 12.1.2016, and a Petition for Special
Leave to Appeal assailing the same, was dismissed by this Court. It
B
was pointed out, that the subsequent dismissal of the judicial proceedings
by the High Court, and by this Court, were inconsequential, inasmuch
as, at the relevant juncture, the High Court having found prima facie
merit in the claim raised by the two MLAs, against the acceptance of
their resignation letters, had stayed the operation of the order by which
their resignation letters had been accepted. It was urged, that it was c
relevant to keep in mind the impression which would have been created
in the mind of the Governor, by the said interim directions. --
108. It was submitted, that immediately after the resignation of
the two MLAs was accepted, 21 MLAs belonging to the INC, wrote to
the Governor on 11.10.2015, that th'e Chief Minister- Nabam Tuki, did D
not enjoy_the majority of the House, and as such, was running a minority
government. Shortly after the receipt of the communication dated
11.10.2015, 13 MLAs (II from the BJP, and 2 Independent MLAs)
issue~ a notice of resolution for the removal of the Speaker - Nabam
Rebia, under Article 179(c) on 19.11.2015. It was submitted, that the
E
aforesaid notice ought to have been taken up at the earliest, and in any
case, soon after the expiry of 14 days (expressed iri the first proviso,
under Article 179). It was highlighted, that on the same day on which
the notice was moved, a copy of the resolution (dated 19.11.2015) was
endorsed by the MLAs to the Governor. And on the same day -
19.11.2015, all the 13 signatories to the resolution for removal of the F
Speaker, made a·written request, to the Governor, seeking preponement
of the 6th session of the House. And for an urgent consideration by the ·
House, of the resolution for the removal of the Speaker-Nabam Rebia.
(this communication, has been extracted above).
I 09. It was further the submission oflearned senior counsel, that G
in order to derail the action initiated by the 13 MLAs, seeking removal of
the Speaker, the Chief Whip of the Congress Legislature Party-Rajesh
Tacho, petitioned the Speaker under Article 191 (2) on 7.12.2015, to
disqualify 14 MLAs, belonging to the INC, on account of their having
allegedly given up their allegiance/membership to the politicar party
H
140 SUPREME COURT REPORTS [2016] 6 S.C.R.

A (-the INC) on whose ticket they had been elected to the House. The
above petition, called for their disqualification under the Tenth Schedule.
It was submitted, that the Governor having viewed the developments
referred to hereinabove, found it appropriate to exercise his discretion
under Article 174, to prepone the 6th session of the Assembly, from
14.1.2016 to 16.12.2015. It was asserted, that the aforesaid action of
B
the Governor, would enable the House to consider the notice of resolution
for the removal of the Speaker - Nabam Rebia, at the earliest, in
consonance with Article 179(c) and Rules 151 to 153 of the 'Conduct of
Business Rules'.
l!O. It was submitted, that the factual position depicted
c hereinabove, had not been invented by the Governor, in order to satisfy
the High Court or this Court, on the then prevailing political conditions,
which necessitated the passing of the order and the message dated
9.12.2015, but was apparent from the monthly letters, addressed by the
Governor to the President. It was pointed out, that the first of the above
D letters, was addressed by the Governor to the President on 17. I 0.2015.
An extract of the same is reproduced hereunder:
"No. GS/I(C)-129/2014 (Vol-II)
l 7'h October, 20 I 5
Hon'ble Shri Pranab Mukherjee Ji,
E This is a Special Report on the latest significant political
developments in my State of Arunachal Pradesh.
In view of the prevailing political imbroglio in the State arising -
out of growing dissidence in the Congress, the Congress Legislators
seem to be divided into two groups, due to internal infighting among
F them for power and position and also one group demanding
resignation of the Chief Minister Shri Nabam Tuki for alleged
failure. Media reports'indicate that, the dissident group has been
camping at New Delhi to appeal to the AICC Central Leadership
for a change of leadership in the State, but AICC has not yet
responded to their appeal. As per media report, Shri Kalikho Pu!,
G the former Finance Minister of the State and sitting MLA is
allegedly leading the dissident group and about 3 7 Legislators in
the 60-Member State Assembly have agreed to support Shri Kalikho
Pu l's bid for leadership. The State BJP termed it as unfortunate
and demanded the resignation of Chief Minister Shri Nabam Tuki,
H .accusing him of failing to honour the people's mandate alleging
NABAM REBIA, AND-BAMANG FELIX v. DEPUTY SPEAKER 141
AND OTHERS [JAGDISH SlNGH KHEHAR, J.] '

that, as a result, the developmental activities continued to be A
adversely affected due to the existing political scenario. It is
pertinent to mention here that Arunachal Pradesh has a 60-
Member Assembly, out of which Congress has 47, BJP-11 and 2
Independent Legislators. However, the Arunachal Pradesh
Congress Committee Chief Shri Padi Richo said that the report
B
was false, fabricated and misleading.
It is reported that, in a high political drama, on J6!h September.
2015. Shri Gabriel Denwang Wangsu and Shri Wanglam Sawin.
both Congress MsLA, were invited to a dinner party at the
residence ofShri Nabam Tuki. Chief Minister where 17 MsLA of
the Congress party attended. Some loyalists of Shri Nabam Tuki
c
compelled them to sign in resignation letters without even reading
the content therein, in front ofShri Nabam Tuki. Chief Minister.
Shri Nabam Rebia. Speaker of the State Assembly and the
President of Pradesh Congress Committee. On I fil October, 2015
the Secretary, Legislative Assembly notified the resignation of D
two Legislators- Shri Gabriel Denwang Wangsu. MLA Kanubari
and Shri Wanglam Sawin, MLA Khonsa (East) have resigned
from the Arunachal Pradesh Legislative Assembly and the Speaker
has accepted their resignations under the provision of Rules of
Procedure and Conduct of Business of the Assembly. The
E
Notification further informed that consequent upon their
resignation, the seats of55-Khonsa East (ST)AC and 58-Kanubari
(ST) AC respectively have fallen vacant. (Notification at
Annexure-1). The two MsLA in a written complaint dated J J!h
October, 2015 to the Governor informed about their being coerced
to submit typed resignation letters addressed to the Speaker "under F
complete duress" and requested for instituting an enquiry into the
whole 'resignation incident' through an agency like the CBI. A
copy of Joint Complaint letter dated 11 rh October, 2015, addressed
to the Governor by Shri Gabriel Denwang Wangsu, MLA Kanubari
and Shri Wanglam Sawin, MLA Khonsa (East) is enclosed at
Annexure-11 for your kind perusal. G

They also submitted another complaint stating that some
anti-social elements and local miscreants frequently visited their
official residences at Itanagar and private property giving mental
agony and raising fears in them and their families. In view of the
H
142 SUPREME COURT REPORTS [2016] 6 S.C.R.

A above, I advised the State Home Minister with copies to the State
Chief Minister, Chief Secretary and DGP to look into the issue
and direct all concerned to provicje necessary security to Shri
Wanglam Sawin, MLA and Shri Gabriel D. Wangsu, MLA and
also to their family members, and that the miscreants I culprits
involved in the intimidation cases be apprehended and brought to
B
justice, at the earliest. (Copy at Annexure-III).
While condemning the move to obtain resignation letter of
17 MsLA by coercing them and putting them under duress, the
People's Party of Arunachal (PPA) termed the alleged forced
resignation as 'murder of democracy' and demanded immediate
c intervention of the Governor on the matter to ascertain that the
two Legislators should get back their constitutional rights.
Opposition Leader Shri Tamiyo Taga (BJP), who himself was
once the Speaker of the State Assembly, questioned the role of
the Speaker Shri Nabam Rebia, for misusing his power and position
D by creating political drama over the resignation of two sitting
MsLA, and stated that the MsLA resigned from the State Assembly
under duress.
Aggrieved by the Order of the Hon'ble Speaker, Sarvashri
Wangsu and Sawin filed Writ Petition before the Hon 'ble Gauhati
E High Court vide WP(C} 6193/2015 praying for relief. The Hon 'ble
Gauhti High Court on 7m October, 2015 stayed the Notification of
the Speaker of Arunachal Pradesh Legislative Assembly dated
0 I. I 0.2015 accepting the resignation letters of the two Congress
MsLA and declaring the seats vacant in their respective
constituencies, and directed that the Election Commission shall
F not take any action on the basis of the Notification to hold bye-
election. fn another development, in a joint letter addressed to the
Governor, the Arunachal Students' Federation (ASF) and the
Wancho Students' Union (WSU) urged to impose President's Rule
in the State, following the disclosure of the resignation of two
G Ms LA.
Meanwhile, Shri Kalikho Pul, MLA recently complained to
me about threats being issued to him by unknown miscreants and
also threats meted out to his family members by a group of
miscreants I criminals at his Official Bungalow. He requested for
H providing adequate security to him and his family members as he
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 143
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

apprehended grave threats to their lives. I advised the State Home A
Minister with intimation to the Chief Minister, Chief Secretary
and DGP to take immediate steps to provide necessary security
to Shri Pu! and his family and also to direct the Police authorities
to take up investigation of the Case, identify and arrest the culprits
and bring them to book under the Law, at the earliest.
B
xxxxxx xxx
For kind infonnation of Hon 'ble President oflndia please.
With Esteemed Regards,
Yours sincerely,_ C
signed (illegible)
(J.P. Rajkhowa)"
111. The second of the letters addressed by the Govemo~ to the
President was dated I 9.11.2015. An extract of the same is reproduced
hereunder:
D
"No. GOV-AP/SPL-REP/20 I 5
19'h November, 2015
Hon'ble Shri Pranab Mukherjeeji,
This is a Special Report highlighting some latest significant
developments in my State of Arunachal Pradesh. E
ln continuation to my Special Report on Political
Development in the State vide No.GS/l(C)- 129/2014 (Vol-II) dated
17'h October, 2015 and my subsequent Monthly Report for the
Month of October, 2015 No. G/ML/2015 dated I "November 2015,
it has been observed that the political imbroglio in the State has
been storming with growing dissidence amongst the Congress F
Legislators, including some Ministers due to internal infighting for
changing ofleadership in the State.
The Congress Legislature Party (CLP) with 47 MsLA in a
60-Member House has cracked into two rival factions in the recent
past. It was reported that the Congress Legislature Party (CLP) G
Meeting was held at Rajiv Gandhi Bawan, Itanagar on S•h
November, 2015, which was attended by 25 Congress Legislators
including Shri Nabam Tuki, ChiefMinister, Shri V. Narayanasamy,
General Secretary, AICC and Dr. K. Jaya Kumar, Secreary, AICC,
both In-Charge of Arunachal Pradesh also attended the Meeting
H
144 SUPREME COURT REPORTS (2016) 6 S.C.R.

A along with Shri Padi Richo, Aunachal Pradesh Congress
Committee (APCC), Office Bearers of APCC, and prominent
leaders of!NC Party from all the Districts of Arunachal Pradesh.
Those in support of Shri Nabam Tuki are stationed in Itanagar,
the Capital City, making occasional appearances before the media
with the Chief Minister, while the dissidents group, comprising 21
B
Congress Legislators. seeking a change' of leadership, citing
"ineffective governance'', financial mismanagement, corruption
and autocratic way offunctioning of the ChiefMinister Shri Nabam
Tuki, have been camping in Delhi for the past two months or so.
The Legislators present in the Meeting condemned the
c dissident Legislators for abstaining from the CLP Meeting. The
Legislators who attended the CLP Meeting were, (I) Shri Nabam
Tuki, Chief Minister, (2) Shri Tanga Byaling, Home Minister, (3)
Shri Gojen Gadi, Minister PWD & Election, (4) Shri Rajesh Tacho,
Minister Health & Family Welfare & Parliamentary Affairs, (5)
D Shri Tapang Taloh, Minister, Education, Libraries, Textile, Handloom
& Handicrafts & Depai1ment of Water Resources Development,
(6) Shri Jomde Kena, Minister, Transport and Civil Aviation,
Cooperation, (7) Shri Pburpa Tsering, Minister, Animal Husbandry
& Veterinary, Power (Civil), (8) Shri Tirong Aboh, Minister,
Department of Development of Tirap, Changlang Districts and
E Mines with additional department of Civil Supplies and Consumer
Affairs, (9) Shri Takam Pario, Minister, Public Health Engineering
& Water Supply, Department of Disaster Management, ( 10) Shri
Techi Kaso, Parliamentary Secretary, (11) Shri Kumsi Sidisow,
Parliamentary Secretary, ( 12) Shri Alo Li bang, Parliamentary
F Secretary, ( 13) Shri Mama Natung, Parliamentary Secretary, ( 14)
Shri JambeyTashi, Parliamentary Secretary, ( 15) Shri Tapuk Taku,
Parliamentary Secretary, (16) Shri Pani Taram, Parliamentary
Secretary, (17) Shri Nikh Kamin, Parliamentary Secretary, (18)
Shri Dikto Yekar, P_arl iamentary Secretary, ( l 9)"Smt. Gum Tayeng,
Parliamentary Secretary, (20) Shri Karya Bagang, Parliamentary
G Secretary, (21) Shri Bamang Felix, Parliamentary Secretary, (22)
Shri Nyamar Karbak, Parliamentary Secretary, (23) Shri Punji
Mara, Parliamentary Secretary, (24) Shri Likha Saaya,
Parliamentary Secretary & (25) Shri Tatung Jam oh, Parliamentary
Secretary.
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 145
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

As per the media report, Shri V. Narayanasamy, AICC In- A
charge Arunachal Pradesh declared Shri Nabam Tuki, Chief
Minister as the undisputed leader and claimed the State
Government I 00% stable. He termed the absence of2 I dissident
MsLA in CLP Meeting as an act of indiscipline and alleged State
BJP and Union Minister of State for Home Affairs Shri Kiren
B
Rijijii to be behind this open defiance arid have been creating
disturbance and hurdles in developmental activities. In the Meeting,
it was reportedly decided to initiate disciplinary action against the
dissident Legislators, who did not attend the CLP Meeting. He
also reportedly stated that he would submit a report to the Party
High Command on the situation and suggest disciplinary action c
against th.e 21 · MsLA. Prominent among the 21 Legislators
included former Ministers Shri Kalikho Pu!, Shri Chowna Mein,
Shri Kumar Waii, Shri Wanglin Lowangdong, Shri Thangwang
Wangham, Shri Kam lung Mossang, most of whom were dropped
from the Ministry led by Shri Nabam Tuki-recently.
D
The State BJP strongly condemned the above unwarranted
statements ofShri Narayanasamy as political statements not based
on truth and out of frustration due to their failure to put their house
in order.
Meanwhile, State BJP Legislators have submitted a
Memorandum dated !2!h November, 2015 to the Governor E
apprising him the recent political crisis in the State and requested
to take appropriate and proactive action on the issue (copy at
Annexure-I). They alleged that the "stretched" political stalemate
has put the State under "complete darkness" and the continuation
of the present Congress Government has made each and every F
citizen very "vulnerable". In the Memorandum they claimed that
in the House of total 60 Members, any Legislature Party to form
a Government must enjoy the confidence or support of minimum
31 Members of the House, but the Government led by Shri Nabam
Tuki commands the support and confidence of only 25 Legislators ..
They also requ-ested the Governor to ask the State Government G
not to take any major decisions in financial matters because Chief
Minister Shri Nabam Tuki's Government has been reduced to a
minority. The State _BJP also reiterated its demand that the ruling
Congress Government in the state should surrender paving way
H
146 SUPREME COURT REPORTS [2016) 6 S.C.R.

A for new regime to take over. Highlighting the present political
situation in the state, the BJP, in a Press Statement, claimed that
the long political stalemate in the rebel-plagued Government has
. brought all developmental activities to a grinding halt and the long
absence of the rebel MLAs. from the state has totally paralyzed
the State.
B
In the meantime, Peoples' Party of Arunachal (PPA) in a
Press Statement said that the Leader of the Opposition should
immediately call upon the Governor of the State and urge him to
instruct the Chief Minister to prove his majority or step down,
owning moral responsibility.
c xxx xxx xxx
I will keep you informed of the subsequent developments, if
any, on the above issues, in my subsequent Report.
With Esteemed Regards,
Yours sincerely,
D
signed (illegible)
. (J.P. Rajkhowa)"
112. The last letter addressed by the Governor to the President,
before the issuance of the order, and the message dated 9.12.2015 was
dated 1.12.2015. An extract of the same is reproduced hereunder:
E "No. G/ML/2015
01 Dec,2015
Hon' ble Shri Pranab Mukherjee j i,
My report for the nio.nth of November, 2015, briefly giving an
outline of various events in Arunachal Pradesh is placed below
F for your kind perusal.
xxx xxx xxx
On 19th November, 2015, thirteen Legislators submitted a
Memorandum to the Governor, praying to rescind the Summons
issued for the House to meet on 14th January, 2016 and re-issue
the Summons for the House to meet at an emergent date so that
G the Resolution aforesaid is considered and disposed at the earliest
in accordance with the scheme, purpose and timeframe envisaged
· by the Constitutfon makers." (Copy at Annexure-1).
Further, 13 Members of the Arunachal Pradesh Legislative
Assembly (APLA), addressing a letter to the Secretary of the
H Assembly, issued a Notice of the following Resolution, under Article
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 147
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

I 79(c) read with Article 181 of the Constitution oflndia and Rules A
151 to \314 of the Rules of Procedure and Conduct of Business of
APLA, for removal of the present Speaker.
"That this House removes Shri Nabam Rebia from the Office of
the Speaker of the Arunachal Pradesh Legislative Assembly with
immediate effect." The signatories have given five grounds, in B
justification, including one of committing the "moral turpitude of
the highest order thereby making him ineligible to occupy the high
office of the Speaker", since he was reportedly "caught in an
ugly scandal involving a woman from the State" who lodged an
-, I
FIR on 15-11-2015 in the Women Police Station, Itanagar. (copy
at Annexure-ll). C
of Arunachal

Legislative Assembly slated to be held from J4!ll Januai:y. 2016,
alleging that the present Nabam Tuki led Govt. has completely
lost the confidence of the people and has been reduced to a minority D
and hence needs to prove his majority in the floor of the House.
It is pertinent to mention here that the present political scenario of
such a long-drawn impasse extending over nearly three months,
with 21 Congress Legislators camping in Delhi to impress upon
the party Central Leadership for removing Shri Nabam Tuki from
E
the post of Chief Minister, is not at all in the interest of the people
and the State, which requires urgent and immediate redressal.
keeping in mind that political stability is ofutmost importance for
the welfare of the_ people of this strategic border State.
The attention of the Raj Bhavan has been drawn to the news
item in one of the local dailies, the Dawnlit Post, with headline F
'Tuki led Government is 100 percent stable: Narayanasamy;
Eastern Sentinel, with Headline 'Tuki, undisputed leader:
Narayanasamy'; Arunachal Front, with a headline 'AICC top
brasses elicit 25 CLP MsLA view to report to Delhi', where it
states that 'Modi replaced all the Governors by RSS men and the G
present State Governor wrote a letter against the Hollongi
Greenfield Airport without consulting the CM which was
unconstitutional. The Governor has turned the Raj Bhavan into
BHP Hqs, Narayanasamy alleged. I expressed strong disapproval
to such wild allegation by a former Union Minister of State, Shri
H
148 SUPREME COURT REPORTS [2016) 6 S.C.R.

A V. Narayanasamy, who is one of the senior leaders of one of the
major political parties of the country. A copy of the Press Release
issued from the Raj Bhavan is attached vi de Annex-' B '.
xxx xxx xxx
During the month under report, the insurgent activities, like forcible
B tax collection by three factions ofNSCN (K), NSCN (IM) and
NSCN (R) in three Districts, i.e. Tirap, Changlang and Longding
are still continuing.
The Detailed Report is enclosed herewith.
With kindest regards,
c Yours sincerely,
signed (illegible)
(J.P. R~jkhowa)"
113. Based on the three monthly reports submitted by the
Governor to the President, it was contended, that there was sufficient
D material before the Governor to arrive at the conclusion, that the Speaker
was likely to discharge his duties in a manner as would result in extending
political favours to the INC. It was submitted, that it was legitimately
apprehended (- by the Governor), that the Speaker who was facing a.
notice of resolution for his removal, would exercise his powers under
the Tenth Schedule, to disqualify the dissident MLAs (belonging to the
E INC), and thereby stage manage his majority in the House, with the
support of the Chief Minister. This in turn, it was urged, would ward off
the threat to the position of the Chief Minister, as well. It was submitted
that, it was in the above background, that the Governor expressed in his
message dated 9.12.2015, that the Presiding Officer during the course
of consideration of the notice of resolution for the removal of the Speaker,
F
would not alter the party composition in the House. It was submitted,
that the aforesaid apprehension entertained by the Governor, came out
to be true, when the Speaker of the Legislative Assembly, issued notices
on 7.12.2015 (returnable for 14.12.2015)forthe removal of the said 14
MLAs, belonging to the INC. It was pointed out, that even though none
G of the above MLAs were served, proceedings against them were simply
adjourned to the following day - 15.12.2015. Even the adjourned date
was not to the knowledge of the MLAs proceeded against. And despite
the fact, that none of the MLAs whose disqualification was sought, had
been served or had entered appearance in the proceedings, they were
all disqualified by the Speaker, on 15.12.2015. According to learned
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 149.
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

senior counsel, this action of the Speaker resulted in depletion of the A
strength of the Assembly. This depleted strength had the effect ofreviving
and securing his own majority, which was sufficient to effectively defeat
the notice of resolution for his removal. It was submitted, that it is
evident that the order, and the message of the Governor dated 9.12.2015,
were based on good and sound reasons, and were aimed at preserving
B
an honest democratic process in the State.
The next instalment, of the legal response, on behalfofthe respondents:
114. Relying on the decisions rendered by this Court in the
Samsher Singh case', and in Madhya Pradesh Special Police
Establishment v. State of Madhya Pradesh' 5 , as also, in State of Gujarat
v. Justice R.A. Mehta 16, and especially in the Satya Pal Dang case'3, it c
was submitted, that the Governor's power to prorogue the Legislative
Assembly under Article 174(2) was absolute, and without any restriction
· and restraint, and that, the Governor could exercise his said power, in his
own discretion without any aid or advice.
115. Having invited our attention .to Article 163(2), it was D
submitted, that the powerofthe Governor with reference to a situation,
in which he is to act in his own discretion is not only final, but also that,
the validity of the exercise of such discretion by the Governor, cannot be
called in question, before any Court. It was asserted, that no one
whatsoever had the right to determine, whether the Governor ought or E
ought not to have acted, in his discretion. It was submitted, that the only
situation, where the exercise of discretion by the Governor, can be called
in question is, when it can be established, that the Governor's action was
perverse or capricious or fallacious or extraneous or for a motivated
consideration. In other words, w·hen the exercise of discretion, can be
described as mala fide. Then, and then alone, according to learned F
counsel, the same can be questioned by adopting a process of judicial
review. It was submitted, that the scope of interference in the discretion
of the Governor under Article 163(2), has to be accepted as extremely
limited. It was pointed out, that Article 163(2) is a unique provision. It
was acknowledged, that its ambit and scope had not yet been determined G
by this Court. It was urged, that the power of the Governor to exercise
functions on his own, without the aid and advice of the Council of Ministers
headed by the Chief Minister, is well known. Illustratively, reference

" (2004) s sec 788
"(2013) 3 sec 1 H
150 SUPREME COURT REPORTS (2016j 6{C.R.

A was made to Articles 200, 239(2), 356, 371(2), 371A(l)(b), 371C(I),
3 71 F(g), and in addition thereto, the powers vested with the Governor
under Paragraph 9 of the Sixth Schedule. It was further urged, that
there were other situations also, wnerein discretion to act independently,
has been conferred on the Governor, even though not specifically
expressed, by or under any provision of the Constitution. Reference
B
was made to the selection of the Chief Minister, after fresh elections
under Article 164; the authority to obtain a fresh vote of co~fidence;
. where it appears to the Governor that the Chief Minister and his Council
of Ministers no longer enjoy the majority in the House. Refer~nce was
also made to.the Sam sher Singh case' (paragraph 154-.- already ~tracted
c ab91ve), wherein this Court referred to obvious situa,tions, irl \'fhich.the
Governorwouldactathisown. ' · . ·: . ~} :: ·
!."
\ .. · , ' ' ·' '1·
116. Reference was also made to the Madhya Pradesh'-special
Police Establishment case'', wherein this Court recognised the fact, that ,i
there would be many situations where, for reasons c;ifperil to democratic
D principles, the Governor was liable to act at his own, without subjecting
himself to the aid and advice of the Chief Minister and his Council of
Ministers. It was explained, that in matters where the Governor is of
the view, that the advice of the Council of Ministers wasJikely to b.e
biased or partisan, or where there is a conflict of interest between the
Council of Ministers on the issue under consideration, it would be .open
E
to a Governor to act at his own, And in such cases, even if advice is
. tendered by the Council of Ministers, the Governor could legitimately
ignore the same. It was pointed out, that the above position was
reiterated in the Justice R.A Mehta case 16, wherein this Court while
interpreting Article 163(2) concluded, that it would be permissible for
; F the Governor to act without ministerial advice, even in the absence of an
express provision in the Constitution.
117. Insofar as the present controversy is concerned, learned
senior counsel asserted, that Article 174 itself vests the power with the
Governor, to summon, prorogue or dissolve the Legislative Assembly. It
G was submitted, that a perusal of Article 174 reveals, that there are no
·restrictions on the powers of the Governor, in the above matters. The
Governor's decision determining the place and time, where and when
'the House would meet, according to learned counsel, is also demonstrative
of the determination of the same, by himself. It was submitted, that
summoning the Assembly is a part of the discretion referred to in Article
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 151
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

163( 1), where the Governor can act without the aid and advice of the A
Council of Ministers. And further that, the decision of the Governor in
the above matter is final, and cannot be questioned, because it is so
mandated, under Article 163(2). It was therefore asserted, that the
discretion exercised by the Governor in preponing the meeting of the
Assembly from 14.1.2016 to 16.12.2015, was fully justified and within
B
the individual domain of the Governor.
118. On the subject ofjudicial review, in respect of the discretion
exercised by the Governor under Article 163(2), it was submitted, that.
this Court in Kesavananda Bharati v. State of Kerala 17, held that the
provisions of the Constitution cannot be amended, so as to alter the
basic structure of the Constitution. It was acknowledged,.that the power
c
ofjudicial review has been recognised as a part of the basic structure of
the Constitution. It was submitted, that the concept of the basic structure,
is not applicable to the original provisions of the Constitution. It was
emphasized, that Article 163(2) is an original provision of the Constitution,
and therefore, it cannot be tested on the touchstone of the concept of D
the basic structure. It was pointed out, that the founding fathers of the
Constitution, desired to vest absolute discretion with the Governor, to
determine whether he ought to act in his discretion. It was urged, that
the founding fathers made it explicitly clear, that the decision of the
Governor taken in his discretion would be final, and additionally, anything
done by the Governor while exercising liis discretion under Article 163(2), E
would not be called in question. It was subinitted, that a plain reading of
the above provision, leaves no room for any doubt, that the framers of
the Constitution vested with the Governor an unambiguous authority to
exercise his discretion under the provisions of the Constitution. The
founding fathers also desired, that such discretion exercised by the F
Governor should be final. It was therefore submitted, that the very
suggestion at the hands of the appellants, that the order and message of
the Governor dated 9.12.2015, were subject to judicial review, was liable
to be rejected. ·
119. In order to demonstrate the uniqueness of the position of G
the Governor, learned senior counsel desired this Court to contrast Article
163 with Article 74. It was pointed out, that Article 74 requires the
President, to exercise his functions in accordance with the aid and advice
tendered to him by the Council of Ministers (with the Prime Minister as
11
(1973) 4 sec 2s H

,.\"·'
152 SUPREME COURT REPORTS (2016] 6 S.C.R.

A the head). And under no circumstances, in his own discretion. It was
urged, that while examining the scope of functions vested with the
Governor, it needs to be visualized that Article 163( 1) postulates situations,
wherein the Governor is to exercise his functions, as provided for by or
under the Constitution, in his own discretion. It was highlighted, that
under Article 163(2), in case of a dispute, whether or not a particular
B
function could or could not be exercised by the Governor in his own
discretion, the Governor and the Governor alone, is mandated to take
call on the matter. And his decision on the matter, is final. According to
learned senior counsel, in the discharge of functions under the Constitution,
the determination at the hands of the Governor is different from that of
c the President. The Governor has clear discretionary powers, whereas
the President has none. Furthermore, as noticed above, Article 163(2)
assigns finality to the determination by the Governor, as to whether he
was required by or under the Constitution to act in his own discretion.
Not only that, the said determination by the Governor" ... shall not be
called in question on the ground that he ought or ought not to have acted
D
in his discretion ... ".
120. It was therefore submitted, that in all matters where, by a
constitutional provision, the Governor is required to discharge a particular
function, the manner in which that function is to be discharged, would
have to be determined by the Governor himself. It was submitted, that
E that could be the only legitimate conclusion, on an effective comparison
and understanding ofArticles 74 and 163. It was in the instant background,
that learned senior counsel drew our attention to Article 174, which
according to him, unambiguously vests in the Governor, the responsibility
to summon the State Legislature. Not only that, it was submitted, that
F the Governor is also vested with the responsibility to determine "as he
thinks fit", when and where the House would meet. Likewise, the
Governor is authorized to prorogue and dissolve the House, from time to
time, as he may choose. It was therefore submitted, that in the facts
and circumstances of the present case, when the Governor by his order
dated 9.12.2015, took the decision by exercising his discretion, to summon
G the House by preponing the 6th session of the Assembly from 14.1.2016
(as earlier fixed), to 16.12.2015. The above discretion exercised by the
Governor was bound to be accepted as final, a11d could not be called in
question. It was submitted, that judicial review of the above order, was
clearly barred, except if it could be shown, that the above discretion was
H not exercised by the Governor bona fide and on due consideration. It
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 153
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

was submitted, that the exercise of discretion at the hands of the Governor A
under Article 163(2), was an area of non-justiciability. And that, it was
impossible to get over the bar, except to the limited extent referred to
hereinabove.
121. In the above view of the matter, for exactly the same reasons
expressed by learned counsel with reference to the order dated 9.12.2015, B
it was submitted, that the discretion exercised by the Governor in
addressing the message dated 9.12.2015 under Article 175, was also in
exercise of due discretion, without any oblique motives, and to further
the democratic process, in consonance with the provisions of the
Constitution, as also, the 'Conduct of Business Rules' (framed under
Article 208). It was therefore the vehement contention of learned senior
c
counsel, that the prayers made by the appellants against the impugned
order of the Governor dated 9.12.2015, as well as, the impugned message
of the Governor dated 9.12.2015, deserved to be rejected.
The last segment of legal submissions, on behalf of the respondents:
D
122. Mr. Ashok H. Desai, Senior Advocate entered appearance
last ofall. His representation was on behalf ofrespondent nos. 21 to 30.
He assisted the Court by primarily expounding the·constitutional
·parameters contemplated under Articles 163 and 174. Learned counsel
examined the aforesaid provisions, to highlight his understanding of the
scope and powers of the Governor. In order to broadly demonstrate the E
functions of the Governor, it was submitted, that the Constitution has
vested with the Governor executive, as well _as, legislative functions. It
was submitted, that Article 154 postulates the range of the executive
power of the State, accorded to the Governor. He placed reliance on
A1ticle 168, which declares the office of the Governor, to be a component F
of the State Legislature. It was also pointed out, that the Governor was
bestowed with legislative power under Article 213, which authorized
him to promulgate Ordinances, during the period the State Legislature
was not in session. As against the above, it was submitted, that all
executive actions of the State Government, are expressed in the name
of the Governor, under Article 166. According to learned counsel, Article G
166 also requires the Governor to make rules for the conven ienttransaction
of business of the State Government, and for the allocation of
governmental business amongst Ministers. It was also highlighted, that
the Governor of a State has the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute sentences H
154 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of persons convicted of offences relating to matters to which the
executive power of the State extends under Article 161. It was submitted,
that under Article 174, the. Governor is required to summon Houses of
the State Legislature, at such time and place as he thinks fit. The Governor
likewise, has the authority to prorogue and dissolve the Assembly. It
was pointed out, that in a State Legislature having both a Legislative
B
Council and a Legislative Assembly, the Governor is authorized to make
rules relating to procedure, with respect to the business of the House,
under Article 208. It was submitted, that no Bill can be passed by State
Legislature(s) to become law, unless on being presenteo to the Governor
under Article 200, the Governor accords his assent to the same. It was
c urged, that even though Article 163 provides, that a Governor would
exercise his functions on the aid and advice of a Council of Ministers
with the Chief Minister as the head, yet the same Article notably authorizes
the Governor to carry out certain functions in his own discretion, without
any aid and ·advice. It was pointed out, that it was inter alia on the
receipt of a report from the Governor of a State, that the President may,
D
in case of failure of the constitutional machinery, declare that the power
of the Legislature of the State, would be exercised under the authority
of the Parliament. It was contended, that the power and position of the
Governor and the contours, while interpreting the scope and extent of
his powers and functions, should be' determined on the basis of the
E responsibilities and the functions assigned to him under different provisions
of the Constitution.
123. It was urged by learned senior counsel, that a Governor is
required to discharge the functions assigned to him, keeping in mind the
true scope and ambit of each of the functions. It was pointed out, that in
F case of conflict between the views expressed by the Union Government
and a concerned State Government, the Governor must assume the
position of an impartial/neutral umpire. It was submitted, that the State
of Arunachal Pradesh (of which respondent no.17, was the Governor),
could not be handled in the same manner as other States recognized by
the Indian Constitution. It was submitted, that the State of Arunachal
G Pradesh is located in the north-east of India, and has one of the longest
international boundaries of any State. It was urged, that the State had
been subjected to recurrent insurgencies from within, as also, from outside
tthe country. It was also pointed out; that China which has a common
border with the State of Arunachal Pradesh, is claiming a large part of
H the Indian territory falling in the State. It was submitted, that Article
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 155
AND OTHERS [JAGDISH SINGH KHEHAR, J.)

371H recognizes the special position of the Governor of the State of A
Arunachal Pradesh. Article 371H is extracted hereunder:
"3 71 H. Special provision with respect to the State of Arunachal
Pradesh.-Notwithstanding anything in this Constitution,-
(a) the Governor of Aru-nachal Pradesh shall have special
responsibility with respect to law and order in the State of B
Arunachal Pradesh and in the discharge of his functions in relation
thereto, the Governor shall, after consulting the Council of
Ministers, exercise his individual judgment as to the action to be
taken:
Provided that if any question arises whether any matter is or is c
not a matter as respects which the Governor is under this clause
required to act in the exercise ofhis individual judgment, the decision
of the Governor in his discretion shall be final, and the validity of
anything done by the Governor shall not be called in question on
the ground that he ought or ought not to have ac~eg in the exercise
ofhis individualjudgment:. D
Provided further that if the President on receipt of a report from
the Governor or otherwise is satisfied that it is no longer necessary
for the Governor to have special responsibility with respect to law
and order in the State of Arunachal Pradesh, he may by order
direct that the Governor shall cease to have such responsibility E
with effect from such date as may be specified in the order;
(b) the Legislative Assembly of the State of Arunachal Pradesh
shall consist of not less than thirty members."
Based on the aforesaid provision, it was pointed out, that the Governor
ofthe State ofArunachal Pradesh, is provided with special responsibilities F
with respect to law and order. It was submitted, that the Governor, after
consulting the Council of Ministers, is authorized to exercise his individual
judgment, as to the action to be takei1, with respect to maintaining law
and order in the State. And that, any such action taken by the Governor
in his individual judgment, has been assigned the status of being final and
binding, so as not be called in question, on the plea that he ought or
G
ought not to have acted, in exercise of his individual judgment. It was
however acknowledged, that the exercise of the responsibility by the
Governor under Article 371H would remain, so long as, the approval for
the same continues to be accorded by the President.
H
156 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 124. On the pointed interpretation of Article 163( I), it was
asserted, that a Governor would ordinarily exercise his functions on the
aid and advice of the Council of Ministers with the Chief Minister as the
head. It was however pointed out, that under the very same provision,
the Governor is authorised by the Constitution "to exercise his functions
or any of them in his discretion''. It was urged, that the constitutional
B
powers which the Governor is mandated to exercise under Article 163( 1),
extend to situations provided for expressly "by or under" the provisions
of the Constitution. It was asserted, that besides the functions assigned
to a Governor under the Constitution, a Governor may be required to
discharge functions and exercise powers, under ordinary legislative
c enactments. It was submitted, that the authority exercised by the
Governor under a statutory provision, may or may not be required to be
performed, on any aid and advice. Relying on the judgment in the Samsher
Singh case 1, it was urged, that a seven-Judge Bench by way of illustration
indicated, a number of situations, where the Governor could act without
any aid and advice. It was highlighted, that in the Samsher Singh case 1
D
the Court emphasized, that the instances depicted in the judgment were
only illustrative, and not exhaustive. A relevant extract of the above
judgment is reproduced hereunder:
"54. The provisions of the Constitution which expressly require
the Governor to exercise his powers in his discretion are contained
E in Articles to which reference has been made. To illustrate,
Article 239(2) states that where a Governor is appointed an
Administrator of an adjoining Union Territory he shall exercise
his functions as such administrator independently of his Council
of Ministers. The other Articles which speak of the discretion of .
F the Governor are paragraphs 9(2) and 18(3) of the Sixth Schedule
and Articles 371A(l)(b), 37IA(l)(d) and 371A(2)
(b) and 371 A(2)(t). The discretion conferred on the Governor
means that as the Constitutional or formal head of the State the
power is vested in him. In this connection, reference may be made
to Article 356 which states that the Governor can send a report to
G the President that a situation has arisen in which the government
of the State cannot be carried on in accordance with the provisions
of this Constitution. Again Article 200 requires the Governor to
reserve for consideration any Bill which in his opinion if it became
law, would so derogate from the powers of the High Court as to
H endanger the position which the High Court is designed to fill
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 157
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

under the Constitution. A
55. In making a report under A1iicle 356 the Governor will be
justified in exercising his discretion even against the aid and advice
of his Council of Ministers. The reason is that the failure of the
constitutional machinery may be because of the conduct of the
Council of Ministers. This discretionary power is given to the B
Governor to enable him to report to the President who, however,
must act on the advice of his Council of Ministers in all matters.
In this context Article 163(2) is explicable that the decision of the
Governor in his discretion shall be final and the validity shall not
be called in question. The action taken by.the President-on sucl.1 a
report is a different matter. The President acts on the advice of c
his Council of Ministers. In all other matters where' the Governor
acts in his discretion he will act in harmony with his Council of
Ministers. The Constitution does not aim at providing a parallel
administration within the State by allowing the Governor to go
against the advice of the Council of Ministers. D
56. Similarly Article 200 indicates another instance where the
Governor may act irrespective of any advice from the Council of
Ministers. In such matters where the Governor is to exercise his
discretion he must discharge his duties to the best of his judgment.
The Governor is required to pursue such courses which are not
detrimental to the State. E
xxx xxx xxx
154. We declare the law of this branch of our Constitution to be
that the President and Governor, custodians of all executive and
other powers under various Articles, shall, by virtue of these
provisions, exercise their formal constitutional powers only upon F
and in accordance with the advice of their Ministers save in a
few well-known exceptional situations. Without being dogmatic
or exhaustive, these situations relate to (a) the choice of Prime
Minister (Chief Minister), restricted though this choice is by the
paramount consideration that he should command a majority in G
the House; (b) the dismissal of a Government which has lost its
majority in the House, but refuses to quit office; (c) the dissolution
of the House where an appeal to the country is necessitous,
although in this area the Head of State should avoid getting involved
in politics and must be advised by his Prime Minister (Chief
H
158 SUPREME COURT REPORTS [2016) 6 S.C.R.

~-

A Minister) who will eventually take the responsibility forthe step.
We do not examine in detail the constitutional proprieties in these
predicaments except to utter the caution that even here the action
must be compelled by the peril to democracy and the appeal to
th.e House or to the country must become blatantly obligatory. We
have no doubt that de Smith's statement regarding royal assent
B
holds good for the President and Governor in India:
Refusal of the royal assent on the ground that the Monarch strongly
disapproved of a Bill or that it was intensely controversial would
nevertheless be unconstitutional. The only circumstances in which the
withholding of the royal assent might be justifiable would be if the
c Government itself were to advise such a course-a highly improbable
contingency-or possibly if it was notorious that a Bill had been passed
in disregard to mandatory procedural requirements; but since the
Government in the later situation would be ofthe opinion that the deviation
would not affect the validity of the measure once it had been assented
D to, prudence would suggest the giving of assent."
Reliance was also placed on State of Maharashtra v. Ramdas Shrinivas
Nayak 18, and our attention was drawn to the following observations
recorded therein:
"10. We may add, there is nothing before us to think that any such
E mistake occurred, nor is there any ground taken in the petition for
grant of special leave that the learned Judges proceeded on a
mistaken view that the learned counsel had made a concession
that there might arise circumstances, under which the Governor
in granting sanction to prosecute a minister must act in his own
discretion and not on the advice of the Council of Ministers. The
statement in the judgment that such a concession was made is
conclusive and, if we may say so, the concession was rightly made.
In the facts and circumstances of the present case, we have no
doubt in our mind that when there is to be a prosecution of the
Chief Minister, the Governor would, while determining whether
G sanction for such prosecution should be granted or not under
Section 6 of the Prevention of Corruption Act, as a matter of
propriety. necessarily act in his own discretion and not on the
advice of the Council of Ministers."
Our attention was also drawn to the Madhya Pradesh Special Police
H 1' ( J 982) 2 sec 463
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 159
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Establishment case 1\ where this Court held as under: A
"12 ...... Thus, as rightly pointed _out by Mr. Sorabjee, a seven-
Judge Bench of this Court has already held that the normal rule is
that the Governor acts on the aid and advice of the Council of
Ministers and not independently or contrary to it. But there are
exceptions under which the Governor can act in his own discretion. B
Some of the exceptions are as set out hereinabove. It is, however,
clarified that the exceptions mentioned in the judgment are not
exhaustive. It is also recognized that the concept of the Governor
acting in his discretion or exercising independent judgment is not
alien to the Constitution. It is recognized that there may be
situations where by reason of peril to democracy or democratic
c
principles an action may be compelled which from its nature is
not amenable to Ministerial advice. Such a situation may be where
bias is inherent and/or manifest in the advice of the Council of
Ministers.
xxx xxx xxx D

19. Article 163 has been extracted above. Undoubtedly, in a
matter of grant of sanction to prosecute the Governor is normal!)
required to act on aid and advice of the Council of Ministers and
not in his discretion. However, an exception may arise whilst
considering grant of sanction to prosecute a Chief Minister or a E
Minister where as a matter of propriety the Governor may have
to act in his own discretion. Similar would be the situation ifthe
Council of Ministers disables itself or disentitles itself."
Learned counsel a)s(') invited the Court's attention to the conclusions
drawn by this Court in the Justice R.A. Mehta case 16, wherefrom he F
laid emphasis on the following observations
"3 7. In M.P. Special Police Establishment v. State ofM.P., (2004)
8 sec 788, the question that arose was whether, for the purpose
of grant of sanction for the prosec~tion of Ministers, for offences
under the Prevention of Corruption Act and/or, the Penal Code, G
the Governor, while granting such sanction, could exercise his
own discretion, or act contrary to the advice rendered to him by
the Council of Ministers. The Court, in this regard, first consi_dered
the object and purpose of the statutozy provisions. which are aimed
at achieving the prevention and eradication of acts of corruption
H
160 SUPREME COURT REPORTS [2016] 6 S.C.R.

A by public functionaries. The Cou11 then also considered, the
provisions of Article 163 of the Constitution, and took into
consideration with respect to the same, a large number of earlier
judgments of this Court, including Samsher Singh v. State of
Punjab, (1974) 2 SCC 831 and State of Maharashtra v. Ramdas
Shrinivas Nayak, (1982) 2 SCC 463, and thereafter, came to the
B
conclusion that, in a matter related to the grant of sanction required
to prosecute a public functionary, the Governor is usually required
to act in accordance with the aid and advice rendered to him by
the Council of Ministers, and not upon his own discretion. However,
an exception may arise while considering the grant of sanction
c required to prosecute the Chief Minister, or a Minister, where as
a matter ofptopriety, the Governor may have to act upon his own
discretion. Similar would be the situation in a case where, the
Council of Ministers disables or disentitles itself from providing
such aid and advice. Such a conclusion by the Cou11, was found
to be necessary, for the reason that the facts and circumstances
D
of a case involving any of the aforementioned fact situations, may
indicate the possibility of bias on the part of the Chief Minister, or
the Council of Ministers. This Court carved out ce11ain exceptions
to the said provision. For instance. where bias is inherent or
apparent, or, where the decision of the Council of Ministers is
E wholly irrational. or. where the Council of Ministers, because of
some incapacity or other situation, is disentitled from giving such
advice, or, where it refrains from doing so as matter of propriety,
or in the case of a complete break down of democracy.
38. Article 163(2) of the Constitution provides that it would be
F permissible for the Governor to act without ministerial advice in
ce11ain other situations, depending upon the circumstances therein,
even though they may not specifically be mentioned in the
Constitution as discretionary functions e.g. the exercise of power
under Article 356( 1), as no such advice will be available from the
Council of Ministers, who are responsible for the breakdown of
G constitutional machinery, or where one Ministry has resigned, and
the other alternative Ministry cannot be formed. Moreover, clause
2 of Article 163 provides that the Governor himself is the final
authority to decide upon the issue of whether he is required by or
under the Constitution, to act in his discretion. The Council of
H Ministers therefore, would be rendered.incompetent in the event
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 161
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

of there being a difference of opinion with respect to such a A
question, and such a decision taken by the Governor, would not
be justiciable in any court. There may also be circumstances
where, there are matters, with respect to which the Constitution
does not specifically require the Governor to act in his discretion,
but the Governor, despite this, may be fullyiustified to act so e~g.
B
the Council of Ministers may advise the Governor to dissolve a
House, which may be detrimental to the interests of the nation. In
·such circumstances, the Governor would be justified in refusing
to accept the advice rendered to him, and act in his discretion.
There may even be circumstances where ministerial advice is not
available at all, i.e. the decision regarding the choice of Chief c
Minister under Article 164( I), which involves choosing a Chief
Minister after a fresh election, or in the event of the death or
resignation of the Chief Minister, or dismissal of the Chief Minister
who loses majority in the House and yet refuses to resign, or
agree to· dissolution. The Governor is further not required to act
D
on the advice of the Council of Ministers, where some other body
has been referred for the purpose of consultation i.e. Article 192(2)
as regards decisions on questions related to the disqualification of
Members of the State Legislature."
Last of all, learned counsel placed reliance on the judgment of th is Court
in Rajendra Singh Verma v. Lt. Governor (NCT of Delhi) 19, and our E
attention was invited to the following observations made therein:
"135. Thus, it is fairly well settled by a cat~na of decisions of this
Court that in the matter of compulsory retirement of a Judicial
Officer the Governor cannot act on the aid and the advice of
Council of Ministers but has to act only on the recommendation F
of the High Court. Though the Lt. Governor is a party to these
appeals, he has not raised any plea that the recommendation made
by the Delhi High Court was not binding on him and he could
have acted in the matter only on the aid and advice of his Council
of Ministers. Thus the order of the Lt. Governor compulsorily G
retiring the appellants without seeking aid and advice of his Council
of Ministers is neither ultra vires nor illegal and is rightly sustained
by the High Court. The Governor could not have passed any order
on the aid and advice of Council of Ministers in this case. The
19
(201 I) IO sec I H
162 SUPREME COURT REPORTS [2016] 6 S.C.R.

A advice should be of no other authority except that of the High
Court in the matter ofjudicial officers. This is the plain implication
of Article 235."
I , .
Based on the declared position oflaw by this· Court, in the judgments on
which reliance was placed by learned .aounsel, it was submitted, tl:tat
B where constitutional issues arise, because of an unacceptable and
constitutionally impermissible conduct of the Council of Ministers, or in
case of a disputation relating to the choice of the Chief Minister,
I
or with
reference to the resolution of the House, or on account of the democratic
process being undermined, it was open to a qiovernor to a,ct on his own,
without any aid and advice. It was urged, that th~ individual determination
c of the Governor would extend to issues where propriety requires him to
discharge his functions in his own discretion, as for instance, ~nction df
prosecution of a ChiefMinister or a Memberofthe Council ot"Minister~.
125. It was urged, that the sequence of facts narrated by the
learned counsel representing the respondents has highlighted a situation,
D where MLAs 'belonging to the INC did not support their own Chief
Minister - Nabam Tuki. It was also highlighted, that the Speaker -
Nabam Rebia, who ought to have been functioning as a neutral arbiter in
the activities of the House, was demonstrating a partisan attitude by
siding with the Chief Minister - Nabam Tuki. And in order to support
E the Chief Minister, the Speaker had endeavoured to misuse the power
vested with him, under the Tenth Schedule. It was therefore submitted,
that the action taken by the Governor, through his order dated 9.12.2015
and his message dated 9.12.2015, was surely aimed at restoring balance
in the democratic process, and as such, could not have been performed
on the aid and advice of the Council of Ministers with the Chief Minister
F as the head. It was pointed out, that not only the Council of Ministers
and the Chief Minister, but also the Speaker were misusing the
constitutional powers vested with them, to derail the democratic process,
and in the facts and circumstances of the case, the Governor was well
· within his rights in exercise of the discretion vested with him under Article
G 163, to endeavour to preserve the democratic process without himself
interfering therewith.
126. Learned senior counsel then placed reliance on the first,
third, fourth, fifth and sixth sequences of facts, to contend that the
constitutional turmoil which prevailed in the State ofArunachal Pradesh
H was of a nature, wherein it was futile to seek the aid and advice of the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 163
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Council of Ministers with the Chief Minister as the head. In fact, it was A
his pointed contention, that the situation which prevailed in the Legislative
Assembly of the State of Arunachal Pradesh, had erupted on account of
the complicity between the Chief Minister and the Speaker, neither of
whom enjoyed the confidence of the House. It was submitted, that the
democratic process was in peril. It was urged, that the Governor in
B
compliance with the oath subscribed to by him, at the time of assumption
of office under Article 159, had passed the order dated 9.12.2015, as
also, issued the message dated 9.12.2015, which were aimed at
preserving, protecting and defending the Constitution, and the laws. It
was submitted, that there was no question of seeking any aid and advice,
for the purpose of preponing the 6th session of the Assembly, in exercise c
of the power. vested with the Governor under Article 174. It was
submitted, that his exercise of discretion to prepone the 6th session of
the Assembly from 14.1.2016 to 14.12.2015, was in consonance with
the discretion vested with him under Article 163(2). In order to justify
his above contention, it was submitted, that there was no cause for the
D
Governor to consult the Chief Minister - Nabam Tuki, who had lost
support of the majority of the MLAs. It was asserted, that in the same
manner, as the Governor can summon the House for a floor test, to
determine whether or not the ruling party had support of the majority, so
also, the Governor was well within his rights, to determine whether or (_,-

not the Speaker, continued to enjoy majority support. It was submitted, E
a
that the right of Speaker to conduct proceedings against MLAs (who
had been proceeded against under the Tenth Schedule), can be considered
to be constitutionally justified, only ifthe Speaker enjoys majority support.
Once the Governor entertained the belief, that the Speaker - Nabam
Rebia, had lost support of the majority of the MLAs, he could not be
F
permitted to discharge the onerous constitutional responsibility, under
the Tenth 'Schedule. It was urged, that it was in the aforestated
background, that the Governor had in his own discretion, summoned the
Assembly underArticle 174. It was submitted, that the instant situation
is comparable to the other circumstances, wherein, even though the
1
Governor has not been so e)(_pressly authorized (to deal with a matter in G
his own discretion), not doing so, would amount to defeating the
constitutional purpose sought to be achieved. In the above view of the
matter, it was reiterated, that in the backdrop of the vast and onerous
functions vested with the Governor, it cannot be' doubted, that the
Governor has the power to summon the Assembly, in exercise of his
H
164 SUPREME COURT REPORTS (2016] 6 S.C.R.

A discretionaiy powers, specially in the ongoing exceptional circumstances,
and the sensitivity of the State of Arunachal Pradesh.
127. Even though we have not highlighted and repeated the
different sequence of facts relied upon by the learned senior counsel,
yet it may be mentioned, that the Governor was allegedly in possession
B of material indicating that the Speaker was under a serious cloud, and
did not command the confidence of the majority of the,MLAs.
Additionally, there were serious allegations of complicity between the
Chief Minister and the Speaker. In the above factual situation, it was
submitted, that the Governor was fully justified in not consulting the
Speaker and/or the Chief Minister (or the Council of Ministers). It was
c asserted, that consulting the Speaker was out of question, as the Speaker
cannot be a judge in his own cause. Insofar as consultation with the
Chief Minister is concerned, it was submitted, that there was sufficient
material before the Governor to suggest, that the Chief Minister and the
Speaker were partners in an illegal conspiracy, to subvert the democratic
D process in the State. In the ~hove view of the matter, it was reiterated,
thatthe Governor was fully vindicated in having exercised his independent
judgment, in not consulting the Chief Minister. It was also pointed out,
that the complicity between the Chief Minister and the Speaker stands
established, from the fact that the Chief Minister- Nabam Tuki, and the
Speaker - Nabam Rebia are first cousins. Therefore, the principle of
E conflict of interest/bias is clearly applicable even in the case on hand. In
the above view of the matter, it was urged, that an expeditious disposal
of the notice of resolution for the removal of the Speaker ~ Nabam
Rebia was fully justified, having regard to the fact that a number of
legislators forming more than l/Sth of the MLAs, had expressed their
F want of confidence in the Speaker.
128. Besides the submissions noticed hereinabove, it was also
the contention ofMr. Ashok H. Desai, learned senior counsel, that the
exercise of discretion by the Governor was final and binding. The Court's
attention was invited to Article 163(2) which mandates, that " ... the
G decision of the Go.vernor in his discretion shall be final, and the validity
of anything done by the Governor shall not be called in question on the
gr9und that he ought orought not to have acted in his discretion.". While
it was acknowledged, that there is no bar to judicial review, learned
senior counsel was emphatic, that judicial review was permissible only
in situations where the Governor had exercised his discretion in a wanton
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 165
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

manner. It was submitted, that the exercise of power by the Governor A
can legitimately be placed in the following categories. Firstly, the exercise
of executive powers in consonance with the provisions of the Constitution,
by or under the order of the Governor, wherein full judicial review is
. available. Secondly, orders passed by the Governor on the aid and advice
of the Council of Ministers headed by the Chief Minister, wherein also B .
full judicial review is available. Thirdly, orders like the grant of pardon
under Article 161, and orders passed by the President based on a report
submitted by the Governor under Article 356, wherein limited judicial
revie.w is available. And fourthly, where the Governor acts without the
aid and advice of the Council of Ministers headed by the Chief Minister,
in his own discretion. It was submitted, that in the fourth situation, no c
judicial review is permissible, as is explicit from a plain reading ofArticle
163(2).
129. To support his aforesaid contention, with reference•to
assailability of the order of the Governor dated 9.12.2015, as well as, the
message ofthe Governor dated 9.12.2015, learned counsel placed reliance D
on the PratapsingRaojirao Rane case 1 ~, and invited the Court's attention
to tJie following: ·
"43. While dealing with Full Benchjucfgment of the Madras High
Court the noted Constitutional Expe.rt H.M. Seervai in
"Constitutional Law oflndia". 4th Edition. Vo.fume I. at page 2070. E
Note 18.79 has opined that the-view taken by Full Bench that in
respect of his official acts, the Governor is not answerable to the
Court even in respect of a charge of ma)a tides is correct.
44. We concur with this position. We also_agree 'with the learned
author that in such eventuality Governor cannot be said to be F
under duty to deal with allegatfons of mala tides-in order to assist
the Court. which in effect would mean that he "is answerable to
the Court.
45. The Governor in terms ofArticle I 56 of the Constitution holds
office during the pleasure of the President. Any mala fide actions G
of the Governor may, therefore, conceivably be gone into by the
President. Another effective check is that the Ministry will fall if
it fails to command a majority in the Legislature Assembly.
46. Thus. the position in law is clear that the Governor. while _
·taking decisions in his sole discretion. enjoys immunity under
166 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Article 361 and the discretion exercised by him in the performance
of such functions is final in terms of Article 163(2). The position
insofar as the dismissal of the Chief Minister is concerned would
be the same, since when the Governor acts in such a matter, he
acts in his sole discr~tion. In both the situations, namely, the
appointment of the Chief Minister and the dismissal of the Chief
B
Minister, the Governor is the best judge of the situation and he
alone is in possession of the relevant information and material on
the basis of which he acts. The resu It, therefore, would be that
such actions cannot be subjected to judicial scrutiny at all."
And on Mahabir Prasad Sharma v. Prafulla Chandra Ghose" 0, wherefrom
c the Court's attention was drawn to the following conclusions:
"44. There are other provisions in the Constitution which empower
the Governor to make an appointment to an office. As for example,
the power under Article 165(1) to appoint a person as the
Advocate-General of the State. This power, however, has been
D
conditioned by the restrictions imposed thereby, namely, that a
person can be appointed Advocate-General ifhe is qualified to be
a Judge of a High Court. If this condition is violated, and a person
is appointed who is not qualified to be a Judge of a High Court,
the appointment can certainly be questioned in writ proceedings,
E as was done in the writ petition filed in the Nagpur High Court.
Then again under Article 310(1) various public servants mentioned
therein hold office during the pleasure of the President and a
Governor. Article 31 0(1) opens with the words: "except as
expressly provided by this Constitution." Article 311 provides for
dismissal, removal or reduction in rank of person employed in civil
F capacities under the Union or the States, and the pleasure of the
President or the Governor contemplated by Article 310(1) is
conditioned by the limitations prescribed by Article 311 of the
Constitution. lfthe conditions and the limitations created by Article
311 are violated in dismissing, removing or reducing in rank a
G servant of the Union or a State, the order of the President or the
Governor can be questioned in appropriate proceedings. But there
is no such limitation or condition to the pleasure of the Governor
prescribed by Article 164( 1) and it must, therefore, be held that
the right of the Governor to withdraw the pleasure, during which

H '" (1968) 72 C.W.N. 328
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 167
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Ministers hold office, is absolute and unrestricted. Furthermore A
having regard to the provisions in Clause (2) of Article 163 the
exercise of the discretion by the Governor in withdrawing the
pleasure cannot be called in question in this proceedings."
Reliance was also placed on Constitutional Law oflndia (Fourth Edition)
Volume II, authored by H.M. Seervai, and the Court's attention was B
_drawn to paragraph 18. 78 on page 2070 thereof, which is extracted
below:
"18.78 As to Brief Note (A), it is submitted that after the Sup.
Ct. 's decision in Samsher Singh's Case the proposition that the
Governor is required to act in his discretion only by express c
provision is no longer good law, for, as we have seen, both the
judgments in that case held that in some cases the Governor had
· power to act in his discretion as a matter ofnecessary implication.
Again, the statement that the words "in his discretion" have the
technical meaning given to them under the G.I. Act, 35, is also not
good law, for the Sup. Ct. gave those words their plain natural D
meaning, namely, that where the Governor acts "in his discretion"
· he is not obliged to follow the advice given to him by the Council
of Ministers. The Full Bench did not give weight to the language
of Art. 163(2) which postulates that a question might arise whether
by or under the Constitution the Governor is required to act in his E
discretion; and Art. 163(2) provides an answer by making the
Governor the sole and final judge of that question, and by further
providing that no action of the Governor shall be called in question
on the ground that he ought or ought not to have acted in his
discretion. It is submitted that in view of Art. 163(2) the court
had no jurisdiction to decide whether the Governor ought or ought F
not to act in his discretion as rightly held by the Calcutta High
Court in M.P. Sharma's Case (1968) 72 C.W.N. 328. It was
unfortunate that this decision was not cited to, or considered by,
'the Full Bench. Secondly, when the petition raised a question
whether the Governor acted on the advice of his Chief Minister G
and whether such advice was misleading. the petition raised
questions which the court could not inquire into. because Art.
163(3) provides that "The question whether any, and if so what,
advice was tendered by Ministers to the Governor shall not be
inquired into in any court".
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168 SUPREME COURT REPORTS (2016] 6 S.C.R ..

A Based on the two judgments referred to hereinabove, as also, the opinion
expressed by the jurist, it was asserted, that in the facts and circumstances
of the present controversy, since it could not be concluded or inferred,
that the Governor had acted in a wanton manner, it must necessarily be
held, that there was no scope to invoke judicial review, as against the
order of the Governor dated 9.12.2015, as also, the message of the
B
Governor dated 9.12.2015.
The consideration and the conclusions:
I.
Article 163 of the Constitution
c Ip3. "Council of Ministers to aid and advise Governor.-( l) There
shall be a Council of Ministers with the Chief Minister at the head
to aid and advise the Governor in the exercise of his functions,
except in so far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion.
D (2) If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor in his
discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he
ought or ought not to have acted i.n his discretion.
E (3) The question whether any, and if so what, advice was tendered
by Ministers to the Governor shall not be inquired into in any ·
court."
130. To demonstrate, that the order and message of the Governor
dated 9.12.2015 were well within the domain and authority of the
F Governor, learned counsel for the respondents were emphatic in pointing
out, the distinction between Article 74 and Article 163. It was pointed
out, that in consonance with Article 74 the Council of Ministers with the
Prime Minister as the head, is to aid and advise the President. And that,
the President is to exercise all his functions in consonance with the advice
G tendered to him. It was highlighted, that no discretionary power
whatsoever has been conferred with the President, to enable him to
exercise his functions in his own discretion. At best, the President can
require the Council of Ministers to reconsider the advice tendered to
him. And on such reconsideration, if the position is reiterated, the
President is bound to act in consonance with the desire of the Council of
H Ministers. In contrast to the above, even though Article 163 similarly
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 169
. AND OTHERS [JAGDISH SINGH KHEHAR, J.]

provides, that the Governor of a State is to exercise his functions in A
consonance with the aid and advice tendered to him by the Council of
Ministers with the Chief Minister as the head, yet Article 163(1) confers
discretionary power with the Governor, when it is so expressly mandated
by or under the Constitution. There can therefore be no doubt, that to a
limited extent, Article 163(1) authorizes the Governor to act in his own
B
discretion. And in that sense, there is a clear distinction between the
power vested with the President, and the power vested with the Governor.
131. According to the respondents, the scope and ambit of the
discretionary power of the Governor, must necessarily be traced from
Article 163(2). It was urged, that even the simple dictionary meaning
assigned to the language adopted in Article 163(2) would reveal, that the c
above provision allows the Governor to choose matters on which he
needs to exercise his own discretion. Such choice made by the Governor,
according to learned counsel for the respondents, has been accorded
finality, and is beyond the purview of being questioned. lt was clarified,
that the validity of an action taken by the Governor in exercise of his D
own discretion, has been assigned a constitutional protection. Inasmuch
as, the same cannot be called in question, even by way ofjudicial review,
on the ground whether the Governor ought or ought not to have acted in
his discretion. Based on the interpretation emerging from a plain reading
of Article 163, it was a~serted on behalf of the respondents, that the
order of the Governor.dated 9.12.2015, as well as, his message dated E
9.12.2015, were actions taken by the Governor in his own independent
discretion, under Article 163(2). It was accordingly urged, that the same
enjoyed absolute constitutional immunity/protection, which placed the
said order and message beyond the scope of being questioned.
132. It was also submitted on behalf of the respondents, that there F
are judicially recognized situations, wherein the Governor can function
without any aid and advice. These were illustratively referred to, by
adverting to Articles 200, 239(2), 356, 371(2), 37 lA(I )(b), 371C(1) and
371 F(g), as also, the power vested with the Governor under Paragraph
9 of the Sixth Schedule. It was also pointed out, that~ontrary to the plain G
reading of Article 163(1 ), namely, that the Governor can exercise his
functions in his own discretion, only in situations provided for "by or
under" the Constitution, this Court has held, that in certain situations the
Gove!'Ilor can still act in his own discretion (without any aid or advice),
even though the Governor has not been so expressly required to act in
H
170 SUPREME COURT REPORTS (2016] 6 S:C.R.

A . his own discretion. Insofar as the situations where there is no such express
provision, and yet the Governor has been held to be authorized to exercise
the same in his own discretion, reference was made to Article 164,
whereunder the Governor is required to choose the person to be sworn
as the Chief Minister, after fresh elections are held. Similarly, wherein
the Government in power, appears to have lost its majority in the
B
Legislature. The Governor can require, the party holding the reins of
Government, or the party desirous to form Government, to demonstrate
their majority by way of a floor test. Reference Was aiso made to
situations wherein, there is a conflict of interest between the Council of
Ministers on the one hand, and the issue under consideration on the
c other. In such matters also, even though there is no express provision
allowing the Governor to act in his own discretion, this Court has
repeatedly declared the right of the Governor, to act on his own, without
any aid and advice.
133. Based on the declared position of law by this Court, it was
D also submitted on behalf of the respondents, that where constitutional
issues arise, because of an unacceptable and constitutionally impermissible
conduct of the Government, or in cases of a disputation relating to the
choice of the Chief Minister, or with reference to an undemocratic
resolution of the House, or on account of the democratic process being
otherwise undermined, it is open to the Governor to act on his own,
E without any aid and advice. It was urged, that the individual determination
of the Governor, would additionally extend to issues, where propriety
required, that the Governor should discharge his functions in his own
discretion.
134. Insofar as the question of judicial review is concerned, it
F was submitted, that this Court in the Kesavananda Bharati case 17 had
recognized judicial review, as a part of the 'basic structure' of the
Constitution. It was also acknowledged, that a series of judgments
rendered by this Court thereafter, have reiterated the above position. It
was however submitted, that a challenge can only be raised under the
G 'basic structure doctrine' to assail an amended provision of the
Constitution. It was contended, that the aforesaid doctrine is not applicable
to the provisions of the original Constitution. It was emphasized, that
Article 163(2), as it presently exists, is in the same format in which it
was originally expressed, by the framers of the Constitution. It was
therefore asserted, that if and when the Governor exercises his
H
NABAM. REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 171
AND OTHERS [JAG DISH SINGH KHEHAR, J .]

constitutional functions in his own discretion, the same are protected
through a constitutional immunity (postulated through, sub-article (2) of
Article 163 ), even from judicial review. In view of the above, it was
contended, that this Court should not entertain a challenge raised by the
appellants, to the order of the Governor dated 9.12.2015, and his message
dated 9.12.2015, since both were decisions of the Governor taken under
B
Article 163(2), in his own discretion, without any aid and advice.
135. Even tlJough the position expressed in the preceding
paragraph is clear and explicit, yet learned counsel representing the
respondents, at his own acceded to one exception to the proposition
canvassed by him, namely, that a determination at the hands of the
Governor in his own discretion, would be subject to judicial review, when
c
it can be shown that the discretion exercisea by the Governor was not
bona fide, or not on due consideration. It was illustratively submitted,
that the Governor's exercise of discretion, would be open to challerige,
where it can be shown to be perverse, or capricious, or fallacious, or
extraneous, or for a motivated consideration, and in situations of the like D
nature. Stated simply, it is conceded, that an order passed by the Governor
in exercise of his own discretion (without any aid or advice) can be
successfully assailed, ifit can be shown, that in the discretion exercised
by the Governor, he had acted wantonly, whimsically or arbitrarily.
136. The aforestated submissions at the hands of the learned E
counsel for the respondents, though extremely attractive, and seemingly
emerging from a plain reading of Article 163(2), cannot be accepted.
The reasons for our determination are being narrated in the following
paragraphs.
137. First of all, it is extremely essential to understand, the nature F
of powers and the functions of the Governor, under the provisions of the
Constitution. Insofar as the instant aspect of the matter is concerned, it
is apparent that the Governor has been assigned functions and powers,
concerning the executive and the legislative affairs of the State. The
executive functioning of the States is provided for under Part VI Chapter
JI of the Constitution, which includes Articles 153 to 167. Article 154 G
mandates, that the executive power of the State is vested with the
Governor, and is to be exercised by him either directly or through officers
subordinate to him "in accordance with this Constitution". Article 163
further warrants, that the Governor would exercise his functions, on the
aid and advice of the Council of Ministers with the Chief Minister as the H
172 SUPREME COURT REPORTS [2016] 6 S.C.R.

A head. The above edict is not applicable, in situations where the Governqr
is expressly required to exercise his functions, " ... by or under this
Constitution ... "," ... in his discretion ... ". The question that will need ',
determination at our hands is, whether the underlying cardinal principle,
with reference to the discretionary power of the Governor, is to be traced
from Article 163( 1) or from Article 163(2). Whilst it was the contention
B
of the learned counsel for the appellants, that the same is expressed in
sub-article (I) of Article 163, the contention on behalfof the respondents
was, that the amplitude of the discretionary power of the Governor is
evinced and manifested in sub-article (2) of Article 163. Undoubtedly,
all executive actions of the Government of a State are expressed in the
c name of the Governor, under Article 166. That, however, does not per
se add to the functions and powers of the Governor. It is also necessary
to appreciate, that 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 commute sentences (under Article
161 ). The Governor's power under Article 161, is undisputedly exercised
D
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 I 66. The instant
responsibility is also discharged, on aid and advice. All in all, it is apparent,
that the Governor is not assigned any significant role in the executive
E functioning of the State. We would also endeavour to examine the duties
and responsibilities of the Governor in the legislative functioning of a
State. Details with reference to the same are found incorporated in
Part VI Chapter III of the Constitution, which includes Articles 168 to
212. Even though Article 168 postulates, that the legislature of a State
would comprise of the Governor, yet the Governor is not assigned any
F
legislative responsibility in any Ho11se(s) of the State Legislature,
irrespective of whether it is the legislative process relating to Ordinary
Bills or Money Bills. Article 158 (dealing with the conditions of the
Governor's office) provides, that the" ... Governor shall not be a member
of either House of Parliament or of a House of the Legislature of any
G State specified in the First Schedule ... ".Insofar as the legislative process
is concerned, the only function vested with the Governor is expressed
through Article 200 which inter alia 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
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 173
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Governor for consideration by the President. The only exception to A
the non-participation of the Governor in legislative functions, is postulated
under Article 213 (contained in Part VI Chapter IV of the Constitution),
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
B
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 174. We shall
exclusively deal with the connotations ofthe instant responsibility entrusted
with the Governor, immediately after drawing our conclusions with c
reference to Article 163. 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. The above Articles are
on the subject ofappointment and removal of the Speaker and the Deputy
·Speaker of the Legislative Assembly, as also, the Chairman and Deputy
D
Chairman of the Legislative Council, as well as, other ancillary matters.
WhilstArticle 179 provides for vacation, resignation and removal of the
Speaker (and the Deputy Speaker) of the Legislative Assembly. Article
I 83 provides for vacation, resignation and removal of the Chairman (and
the Deputy Chairman) of the Legislative Council. In neither of the above
Articles, the Governor has any assigned role. The only responsibility E
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.
138. The above position, leaves no room for any doubt, that the F
Governor cannot be seen to have such powers and functions, as would
assign to him a dominating position, over the State executive and the
State legislature. The interpretation placed on Article 163(2), on behalf
of the respondents, has just that effect, because of the following
contentions advanced on behalf of the respondents. Firstly, whenever a
question arises, whether in discharging a particular function, the Governor G
can or cannot act in his own discretion. According to the' respondents,
the discretion of the Governor, on the above question, is final. Secondly,
since the provision itself postulates, that" ... the decision of the Governor
in his discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he ought or H
174 SUPREME COURT REPORTS [2016] 6 S.C.R.

A ought not to have acted in his discretion ... ", according to the respondents,
makes the Governor's orders based on his own discretion, immune from
judicial review. Accepting the above position, will convert the Governor
into an all-pervading super-constitutional authority. Th.is position is not
acceptable because an examination of the executive and legislative
functions of the Governor, from the surrounding provisions of the
B
Constitution clearly brings out, that the Governor has not been assigned
any significant role either in the executive or the legislative functioning
of the State. The position adopted on behalf of the appe11ants, on the
other hand, augurs well in an overall harmonious construction of the
provisions of the Constitution. Even on a cursory examination of the
c relevant provisions of the Constitution, we are inclined to accept the
contention advanced on behalf of the appellants.
139. In our considered view,.a clear answer to the· query raised
above, can inter alia emerge from the Constituent Assembly debates
with reference to draft Article 143, which eventually came to be
D renumbered as Article 163 in the Constitution. It would be relevant to
record, that from the queries raised by H.V. Karnath, T.T.
Krishnamachari, Alladi Krishnaswami Ayyar, and from the response to
the same by Dr. B.R. Ambedkar, it clearly emerges, that the general
principle with reference to the scope and extent of the discretionary
power of the Governor, is provided for through Article 163(1). It also
E becomes apparent from Article 163(1 ), which provides for the principle
of ministerial responsibility. The crucial position that gets clarified from
a perusal of the Constituent Assembly debates, arises from the answer
to the query, whether the Governor should have any discretionary power·
at all? The debates expound, that the retention of discretionary power
F with the Governor was not, in any way, contrary to the power of
responsible Government, nor should the same be assumed as a power
akin to that vested with a Governor under the Government oflndia Act,
1935. And from that, emerges the answer that the retention and vesting
of discretionary powers with the Governor, should not be taken in the
sense of being contrary to, or having the effect of negating, the powers
G of responsible Government. Significantly, with reference to the Governor's
discretionary powers, it was emphasized by Dr. B.R. Ambedkar, that
"the clause is a very limited clause; it says: 'except insofar as he is by or
under this Constitutioi1'. Th~refure, Article 163 will have to be read in
conjunction with such other Articles which specifically reserve the powers
H to the Governor". "It is not a general clause giving the Governor power
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 175
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

to disregard the advice of his Ministers, in any matter in which he finds A
he ought to disregard. There, I think, lies the fallacy of the argument of
my Hon 'hie friend ... ". In our considered view, the Constituent Assembly
debates, leave no room for any doubt, that the framers of the Constitution
desired to embody the general and basic principle, describing the extent
and scope of the discretionary power of the Governor, in sub-article ( 1)
B
of Article 163, and not in sub-article (2) thereof, as suggested by the
learned counsel for the respondents.
140. Insofar as the instant issue is concerned, reference may
also be made to the Justice Sarkaria Commission report on "Centre -
State Relations" and the Justice M.M. Punchhi Commission report on
"Constitutional Governance and Management of Centre - State
c
Relations". The conclusions drawn in both the above reports are clear
and explicit. In paragraph 4.1.03 of the Justice M.M. Punchhi
Commission report, the-observations of Dr. B.R. Ambedkar have been
highlighted to the effect, that insofar as the constitutional role of the
Governor is concerned," .....the Governor under the Constitution has no D
function which he can discharge by himself; no functions at all. While he
has no functic:ms, he has certain duties to perform, and I think the House
will do well to bear in mind this distinction.". " ..... This Article,·nowhere,
either in clause (a) or clause (b) or clause (c), says that the Governor in
any particular circumstances may overrule the Ministry. Therefore, the
criticism that has been made that this Article somehow enables the E
Governor to interfere or to upset the decision of the Cabinet is entirely
beside the point, and completely mistaken." And thereafter, in paragraph
4.2.14 of the Justice M.M. Punchhi Commission report, it is observed as
under:
"4.2.14 In a very limited field, however. the Governor may exercise F
certain functions in his discretion. as provided in Article 163(1).
)he 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 G
discretion. The expression "required" signifies that the Governor
can exercise his discretionary powers only ifthere is a compelling
necessity to do so. It has been held that the expression "by or
under the Constitution" means that the necessity to exercise such
powers may arise from any express provision of the Constitution
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176 SUPREME COURT REPORTS [2016] 6 S.C.R.

A or by necessary implication. We would like to add that such
necessity may also arise from rules and orders made "under" the
Constitution."
4.2.15 Thus, the scope of discretionary powers as provided in the
exception in clause ( 1) and in clause (2) of Article 163 has been
B limited by the clear language of the two clauses. It is an accepted
principle that in a parliamentary democracy with a responsible
form of government, the powers of the Governor as Constitutional
or formal head of the State should not be enlarged at the cost of
the real executive. viz. the Council of Ministers. The scope of
discretionary powers has to be strictly construed,, effectively .
c dispelling the apprehension, if any, that the area for the exercise
of discretion covers all or any of the functions to be exercised by
the Governor under the Constitution. In other words, Article 163
does not give the Governor a general discretionary power to act
against or without the advice of his Council of Ministers. The
D area forthe exercise ofhis discretion is limited. Even this limited
area, his choice of action should not be arbitrary or fanciful. It
_must be a choice dictated by reason, actuated by good faith and
tempered by caution."
The important observations in the Justice M.M. Punchhi Commission
report, with reference to Article 163(2), are contained in paragraph 4.3.03.
E
Relevant extract of the same is reproduced below:
"Article 163(2) gives an impression that the Governor has a wide.
undefined area of discretionary powers even outside situations an
impression needs to be dispelled. The Commission is of the view
that the scope of discretionary powers under Article 163(2) has
F to be narrowly construed. effectively dispelling the apprehension,
if any, that the so-called discretionary powers extends to all the
functions that the Governor is empowered under the Constitution.
Article 163 does not give the Governor a general discretionary
power to act against or without the advice of his Council of
G Ministers. In fact. the area for the exercise of discretion is limited
and even in this limited area, his choice·ofaction should not be nor
appear to be arbitrary or fanciful. It must be a choice dictated by
reason, actlv~ted by good faith and tempered by caution. ·
The Governor's discretionary powers are the following: to give
H
assent or withhold or
refer a Bill for Presidential assent under
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 177
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Article 200; the appointment of the Chief Minister under Article A
164; dismissal of a Government which has lost confidence but
refuses to quit, since the Chief Minister holds office during the
pleasure of the Governor; dissolution of the House under Article
174; Governor's report under Article 356; Governor's responsibility
for certain regions under Article 371-A, 371-C, 371-E, 371-H etc.
B
.. These aspects are now considered below: ... "
We are of the considered view; that the inferences drawn in the Justice
M. M. Punchhi Commission report extracted hereinabove, 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 c
Article 163. We endorse and adoptthe S!lme, as a correct expression of
the constitutional interpretation, with reference to the issue under
consideration.
. 141. Though the debate could be endless, yet we would consider
it apposite to advert to the decisions rendered by this Court in the Sardari D
Lal case1 and the Samsher Singh case 1 • Insofar as the Sardafi Lal
case~ is co11cerned, this Court had held therein, that the President or the
Governor, as the case may qe, would pass an order only on his personal
satisfaction. In the above case, this Court while examining the case of
an employee under Article 311(2) (more particularly, under proviso (c) E
therecit), recorded its conclusions, in the manner expressed above. The
same issue. was placed before a seven-Judge Bench constituted to re-
examine the position adopted in the Sardari Lal case~. The position came
to be reversed. This Court in the Samsher Singh case 1 declared, that
wherever the Constitution required the satisfaction of the President or
the Governor, for the exercise of any power or function, as for example F
under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction
required by the Constitution was not the personal satisfaction of the
President or the Governor. " ... but is the satisfaction of the President or
of the Governor in the constitutional sense under the Cabinet system of
Government ... ". It is therefore clear, that even though the Governor G
may be authorized to exercise some functions, under different provisions
of the Constitution, the same are required to be exercised only on the
basis of the aid and advice tendered to him under Article 163, unless the
Governor has been expressly authorized, by or under a constitutional
provision, to discharge the concerned function, in his own discretion.
.H
178 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 142. We are therefore of the considered view, that 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
B
provision, could not be construed otherwise. We therefore hereby reject
the contention advanced on behalf of the respondents, that the Governor
has the freedom to determine when and in which situation, he should
take a decision in his OWJl discretion, without the aid and advice of the
Chief Minister and his Council of Ministers. We accordingly, also turn
c down the contention, that whenever the Governor in the discharge of his
functions, takes a decision in his own discretion, the same would be final
and binding, and beyond the purview of judicial review. We are of the
view, that finality expressed in Article 163(2) would apply to functions
exercised by the Governor in his own discretion, as are permissible within
the framework ofArticle 163(1 ), and additionally, in situations where the
D
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 contradictory in tenns.
143. We may therefore summarise our conclusions as under:
E Firstly, the measure of discretionary power of the Governor, is limited to
the scope postulated therefor, under Article 163( I).
Secondly, under Article 163(1) the discretionary power of the Governor
extends to situations, wherein a constitutional provision expressly requires
the Governor to act in his own discretion.
F Thirdly, the Governor can additionally discharge functions in his own
discretion, where such intent emerges from a legitimate interpretation of
the concerned provision, and the same cannot be construed otherwise.
Fourthly, in situations where this Court has declared, that the Governor
should exercise the particular function at his own and without any aid or
G advice, because of the impennissibility of the other alternative, by reason
of conflict of interest.
Fifthly, the submission advanced on behalf of the respondents, that the
exercise of discretion under Article 163(2) is final and beyond the scope
ofjudicial review cannot be accepted. Firstly, because we have rejected
H the submission advanced by the respondents, that the scope and extent
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 179
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

of discretion vested with the Governor has to be ascertained from Article A
163(2), on the basis whereof the submission was canvassed. And
secondly, any discretion exercised beyond the Governor'sjurisdictional
authority, would certainly be subject to judicial review.
Sixthly, in view of the conclusion drawn at Fifthly above, the judgments
rendered in the Mahabir Prasad Sharma case:0 , and the Pratapsing B
Raojirao Rane case 1', by the High Courts of Calcutta and Bombay,
respectively, do not lay down the correct legal position. The constitutional
position declared therein, with reference to Article 163(2), is accordingly
hereby set aside.
144. The conclusions recorded hereinabove will constitute the C
_foundational baSfs for determining some of the other important issues,
that arise for consideration in the present controversy.
IL
Article 174 of the Constitution
D
174. "Sessions of the State Legislature, prorogation and
dissolution - ( 1) The Governor shall from time to time summon
the House or each House of the Legislature of the State to meet
at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date
appointed for its first sitting in the next session. E
(2)The Governor may from time to time -
(a)prorogue the House or either House;
(b )dissolve the Legislative Assembly."
145. A forceful and determined contention was advanced by the F
.learned counsel for the respondents, that the process of summoning the
Assembly can never be considered as anti-democratic. It was asserted,
thatthe summoning a Legislature, can only further the democratic process,
as it opens the House for carrying out legislative activity. As against the
above, it was pointed out, that when the Assembly is prorogued or
dissolved, the democratic/legislative processes are placed in suspended G
animation. An action which prorogues or dissolves the Legislature,
according to learned counsel, can be taken to be actions whereby the
democratic/legislative process is either temporarily stalled, or brought to
an end. According to learned counsel for the respondents, there can
therefore be no justification, to find fault with the order of the Governor H
180 SUPREME COURT REPORTS [2016] 6 S.C.R.

A dated 9.12.2015, or with his message dated 9.12.2015, by which the
summoning of the 6th session of the Assembly, was preponed from
14.1.2016 to 16.12.2015, and thereby the democratic/legislative process
was brought into active animation, from a date earlier than originally
detennined.
8 146. Adverting to the plain reading ofArticle 174, it was submitted,
that the Governor has not only been vested with the authority to summon
the House, but has also been vested with the authority to determine, at
which venue and at what time, the House should be summoned. For this,
reference was made to the words "as he thinks fit" in Article 174(1),
which signify and imply, that the Governor, would exercise his discretion
c and power to summon the Assembly, on his own, and without any aid or
advice. It was contended on behalf of the respondents, by inviting the
Court's attention to sub-article (2) of Article 174, that even the question
of proroguing and dissolving the House, had been left to the free will and
discretion of the Governor.
D 14 7. ln connection with the interpretation ofArticle I 74(1) which ·
pertains to the power of the Governor, to summon the House, it was
urged, that the words "as he thinks fit" satisfy the requirement ofArticle
163(1), inasmuch as it fulfills the constitutional stipulation, that the
Governor would exercise functions in his discretion, which he is expressly .
E required, "by or under" the Constitution, to exercise on his own. It was
therefore asserted, that it being clearly and expressly mandated under
Article 174( 1) itself, that the Governor could summon the State
Legislature "as he thinks fit" the requirement of Article 163(1) stands
satisfied.

F 148. Yet again, the contention advanced at the hands of the
learned counsel for the respondents, at first blush seems to be most
acceptable. But, the Constituent Assembly debates in connection with
Article 174, the historical background depicting the manner in which
Article 174 came to be drafted, and treatises on the issue, clearly lead to
the conclusion, that the submission advanced at the behest of the
G respondents, cannot be accepted. We shall hereinafter, detail our reasons,
for not accepting the respondents' contention.
149. It would be relevant to mention, that draft Article 153
eventually came to be renumbered as Article 174 of the Constitution.
draft Article 153 has been extracted in paragraph xxx 48 xxx, above. A
H perusal of the draft Article I 53(2) would reveal, that the same through
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 181
AND OTHERS [JAGDISH SINGH KHEHAR, J.)

the words "as he thinks fit", vested discretion with the.Governor to choose A
the time and p_lace at which the House(s) were to be summoned. The
above words have been retained in Article 174. The retention of the
said words, would lean in favour of the submission canvassed on behalf
of the respondents. It is however relevant to notice, that the power to
summon the House or Houses of the State Legislature was postulated
B
under draft Article 153(2)(a), whereas the power to prorogue and dissolve
the House or Houses of the State Legislature was expressed in draft
Articles 153(2)(b) and (c) respectively. 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 c
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).
Needless to mention, that under Article 163( I), the Governor can exercise
only such functions in his own discretion which he is expressly required,
D
by or under the Constitution, to exercise in his discretion. The manner in
which draft Article 153(3) was originally drawn, would have left 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) E
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 F
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 ... ". In such view of the matter, we are satisfied in G
concluding, that the Governor can summon, prorogue and dissolve the
House, only on the aid and advice of the Council of Ministers with the
Chief Minister as the head. And not at his own.
150. The historical reason relevant for the present determination,
emerges from the fact, that a Governor under the Constitution, is not an H
182 SUPREME COURT REPORTS [2016] 6 S.C.R.

A elected representative. A Governor is appointed by a warrant issued
under the hand and seal of the President under Article 15~, 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 President. The President, on receipt of the
B
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. Jn our considered view,
such a nominee, cannot have an overriding authority, over the
c 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. Allowing
the Governor to overrule the resolve and determination-of the State
legislature or the State executive, would not harmoniously augur with
D
the strong democratic principles enshrined in the provisions of the
Constitution. Specially so, because the Constitution is founded on the
principle of ministerial responsibility. The acceptance of the submission
advanced on behalf of the respondents, would obviously negate the
concept of responsible Government. Summoning of the Legislature,
E initiates the commencement of the legislative process; prorogation of
the Legislature temporarily defers the legislative process; and the
dissolution of the Legislature brings to an end, the legislative process. In
the absence of any legislative responsibility, acceptance of the contention
advanced on behalf of the respondents, would seriously interfere with
the responsibility entrusted to the popular Government, which operates
F
through the Council of Ministers with the Chief Minister as the head. It
is for the instant reasons also, that.the submission advanced on behalf of
the respondents, with reference to the interpretation ofArticle 174, does
not merit acceptance.
151. For an insight into Article 174, reference may also be made
G to the observations recorded in the Justice Sarkaria Coi;nmission report
on "Centre-State Relations", and the Justice M.M. Punchhi Commission
report on "Constitutional Governance and Management of Centre - State
Relations". With reference to Article 174, the Justice M.M. Punchhi
Commission report makes the following remarks:
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 183
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

"4.5.04 Summoning,_ proroguing and dissolution of the legislative A
assembly
Article 174 of the Constitution empowers the Governor to summon,
prorogue or dissolve the House. It is a well-recognised principle
that, so long as the Council of Ministers enjoys the confidence of
the Assembly, its advice in these m~tters, unless patently B
unconstitutional.must be deemed as binding on the Governor. It is
only where such advice, if acted upon, would lead to an
infringement of a constitutional provision, or where the Council of
Ministers has ceased to enjoy the confidence of the Assembly,
that the guestion arises whether the Governor may act in the
exercise of his discretion. The Sarkaria Commission recommended
c
that, if the Chief Minister neglects or refuses to summon the
Assembly for holding a "Floor Test", the Governor should summon
the Assembly for the purpose. As regards proroguing a House of
Legislature, the Governor should normally act on the advice of
the Chief Minister. But where the latter advises prorogation when D
a notice ofno-confidence motion against the Ministry is pending,
the Governor should not straightaway accept the advice. If he
finds that the no-confidence motion represents a legitimate
challenge from the Opposition, he should advice the Chief Minister
to postpone prorogation and face the motion. As far as dissolution
of the House is concerned, the Governor is bound by the decision E
taken by the Chief Minister who has majority. However, if the
advice is rendered by a Chief Minister who doesn't have majority,
then the Governor can try to see if an alternate government can
be formed and only if that isn't possible, should the house be
dissolved. This Commission reiterates the recommendations of F
the Sarkatia Commission in this regard."
The extract of the report reproduced above, makes it abundantly clear,
that as long as the Council of Ministers enjoys the confidence of the
House, the aid and advice of the Council of Ministers headed by the
Chief Minister is binding on the Governor, on the subject of summoning, G
proroguing or dissolving the House or Houses of the State Legislature.
The above position would stand altered, ifthe Government in power has
lost the confidence of the House. As and when the Chief Minister does
not enjoy the support from the majority of the House, it is open to the
Governor to act at his own, without any aid and advice. Aid and advice
H
184 SUPREME COURT REPORTS [2016] 6 S.C.R.

A sustains and subsists, till the Government enjoys the confidence of the
Legislature. We find no justification in taking a different view, than the
one expressed by the Justice Sarkaria Commission report, conclusions
whereof were reiterated by the Justice M.M. Punchhi Commission report.
We endorse and adopt the same, as a correct expression of the
constitutional interpretation, insofar as the present issue is concerned.
B
152. In addition to the above, reference may also be made to the
treatise by M.N Kaul and S.L. Shakdher - "Practice and Procedure of
Parliament" (5th Edition) published by the Lok ~Qhha Secretariat. In
the above text, Chapter IX bears the heading- "Summoning, Prorogation
of the Houses of Parliament and the Dissolution of the Lok Sabha".
c Relevant portion of the above chapter, has been extracted in paragraph
xxx 4 7 xxx, above. The same clearly expresses the view of the authors,
that the Governor would summon or prorogue the House or Houses of
the State Legislature, on the aid and advice of the Chief Minister." The
narration by the authors reveals, that it would be open to the Governor to
D suggest an alternative date for summoning or proroguing the House or
Houses of the State Legislature, but the final determination on the above
issue rests with the Chief Minister or the Cabinet, which may decide to
accept or not to accept, the alternate date suggested by the Governor.
The opinion ofM.N Kaul and S.L. Shakdher is in consonance with the
Constituent Assembly debates. The position only gets altered, when the
E Government in power loses its majority in the House. With reference to
prorogation, the opinion expressed by the authors is, that the same is
also to be detennined by the Council of Ministers with the Chief Minister
as the head, except in a situation wherein the Government's majority in
the House, is under challenge. From the above exposition it emerges,
F that the Chief Minister and his Council of Ministers lose their right to aid
and advise the Governor, to summon or prorogue or dissolve the House,
when the issue of the Government's support by a majority of the members
of the House, has beeff rendered debatable. We have no hesitation in
endorsing the above view. But, what is of significance and importance
in the opinion expressed by M.N Kaul and S.L. Shakdher, which needs
G to be highlighted is, that the mere fact that some members of the ruling
party have defected, does not necessarily prove that the party has lost
confidence of the House. And in such a situation, if there is a no
confidence motion againstthe Chief Minister, who instead of facing the
Assembly, advises the Governor to prorogue or dissolve the Assembly,
H the Governor need not accept such advice. In the above situation, the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 185
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Governor would be well within his right, to ask the Chief Minister to get A
the verdict of the Assembly, on the no confidence motion. The above
authors also express the view, that if the Chief Minister recommends
dissolution of the Assembly, when the budget has not been voted, whilst
the Ministry claims majority support, the Ministry in such a situation
should face the Assembly and get the budget passed, before seeking
B
dissolution for whatever reasons. However, where there is reason to
believe, that the Government in power no longer enjoys majority support,
it is open to the Governor, to take steps to determine the issue of majority
by a floor test. And in case the Government in power fails to succeed in
the same, to take steps to ascertain the possibility of installing another
Government, which is in a position to command majority support, so as c
to get the budget passed. Not taking the aforesaid course, would lead to
a financial impasse, in which situation, it would be open to the Governor,
to move the President under Articles 356 or 360. In the instant situation
also, M.N Kaul and S.L.Shakdher have opined, that it would be open to
the Governor to act at his own, without any aid and advice of the Council
D
of Ministers headed by the Chief Minister. Neither of the aforesaid two
situations emerge in the facts and circumstances of the present case.
153. In view of the consideration recorded hereinabove, we are
of the view, that in ordinary circumstances during the period when the
Chief Minister and his Council of Ministers enjoy the confidence of the
E
majority of the House, the power vested with the Governor under Article
174, to summon, prorogue and dissolve the House(s) 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 F
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 G
under Article 174 at his own, and without any aid and advice.
?
154. Since it is not a matter of dispute, that the Governor never
called for a floor test, it is reasonable for us to infer, that the Governor
did not ever'entertain any doubt, that the Chief Minister and his Council
H
186 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 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 just could not have
summoned the House, vide 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
B
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. ·
m.
A11icle 175 of the Constitution
c 175. "Right of Governor to address and send messages to the
House or Houses -( 1) The Governor may address the Legislative
Assembly or, in the case of a State having a Legislative Council,
either House of the Legislature of the State, or both Houses
assembled together, and may for that purpose require tlie
D attendance of members.
(2) The Governor may send messages to the House or Houses of
the Legislature of the State, whether with respect of a Bill then
pending in the Legislature or otherwise, and a House to which
any message is so sent shall with all convenient despatch consider
E any matter required by the message to be taken into consideration."
155. On the ambit and scope of messages which can be
addressed by the Governor to the House or Houses of State Legislatures
under Article 175, it was submitted on behalf of the respondents, that the
.same can be with respect to" ... a Bill then pending in the Legislature or
F . otherwise". Based Oil the use of the above expression in Article 175(2), .
it was asserted on behalf of the respondents, that the text of the message
need not necessarily be limited to a Bill then pending before the
Legislature. It was submitted, that a message can extend to additional
and ancillary issues, as was apparent from the words "or otherwise"
used in conjunction with the words "with respect to a Bill then pending in
G the Legislature". It was also sought to be clarified, that the power vested
with the Governor to address a message to the House or Houses of the
State Legislature, should not be confused with the power vested with
the Governor under Article 200, which authorizes the Governor inter
alia to accord his assent to a Bill, or to return a Bill (if it is not a Money
Bill) together with a message requesting the House or Houses of the
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 187
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

State Legislature to reconsider the Bill, or any specified provisions thereof, A
and/or the desirability of introducing such amendments in theBill, as the
Governor m;ay recommend in his message. It was submitted, that the
power exercised by the Governor under Article 200, relates to a Bill
passed by the State Legislature, whereas the message referred to in
Article 175, is expressly relatable to a Bill then pending before the State
B
Legislature. It was pointed out, that the use of the words "or otherwise"
in Article 175(2) has the consequence of extending and enlarging the
subject and context on which a message can be addressed by the
Governor, to the State Legislature.
156. It was further submitted on behalf of the respondents, that
the message of the Governor dated 9.12.2015 (which has been impugned
c
by the appellants before this Court), contained three directions. Firstly,
the Assembly should not be adjourned, till the notice ofresolution forthe
removal of the Speaker - Nabam Rebia dated 19.11.2015, was finally
determined, one way or the other. Secondly, the notice ofresolution for
the removal of the Speaker - Nabam Rebia, should be taken up for D
consideration in the list of business of the Assembly, before any other
business of the day is taken up. And thirdly, until the 6th session of the
Assembly was prorogued, the Presiding Officer "shall" not alter the
party composition in the House. Insofar as the directions contained in
the impugned message dated 9.12.2015 are concerned, it was asserted,
that the same merely brought to the notice of the members of the E
Assembly, the provisions of the Constitution, supplemented by the
'Conduct of Business Rules', to ensure that the functioning of the House,
in a situation of turmoil and turbulence, was carried out in consonance
with established norms. Insofar as the first direction is concerned,
reference was made to Rule 151 of the 'Conduct of Business Rules', F
which provides, that after a notice of resolution for the removal of a
Speaker is tabled, the House shall not be adjourned till the motion ofno
confidence has been finally disposed of. Insofar as the second direction
is concerned, it was pointed out, that the same is postulated under Rule
153 of the 'Conduct of Business Rules', which provides, that a notice of
resolution for the r~moval of the Speaker would be included in the list of G
business, before any other business of the day is taken up. And insofar
as the third direction is concerned, reference was made to Article 179(c),
which provides that a 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". It was therefore contended on behalf of H
188 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the respondents, that the alleged directions contained in the message
addressed by the Governor to the Assembly, dated 9.12.2015, were not
matters emerging out of any independent will or fancy of the Governor,
but were in consonance with the prescribed and postulated rules of
procedure, which were in any case bound to be followed, while considering
a notice ofresolution for the removal of the Speaker. It was accordingly
B
asserted, that the impugned message dated 9.12.2015 should be viewed
as advice and guidance, tendered by the Governor to the Assembly, so
as to preserve recognized constitutional norms.
157. Based on the assertions recorded hereinabove, it was
submitted on behalf of the respondents, that save and except, the ultimate
c desire of the Governor to preserve the democratic process, the impugned
message dated 9.12.2015, had no other fallout/consequence, nor was
the same aimed at a gain or loss, for one or the other political party. It
was contended, that no extraneous motive, could be attributed to the
Governor, with reference to the message dated 9.12.2015. It was also
D urged, that any action taken by the Assembly, in breach of the message
dated 9.12.2015, would have constituted a serious constitutional
impropriety. In conclusion, it was submitted, that the message dated
9.12.2015, should be taken as a bona fide gesture at the hands of the
Governor, to require the Assembly to carry out its functions, in the peculiar
circumstances which prevailed at that juncture, in accordance with the
E provisions of the Constitution. It was also pointed out, that the message
dated 9.12.2015 was addressed by the Governor, by taking note of the
actions of the Speaker, who was manipulating the situation, so as to
defer consideration on the notice ofresolution, for his own removal.
158. We must yet again acknowledge, that the submissions
F advanced at the behest of the respondents, emerge from common sense,
rationale and acceptable logic. The question which arises for our
consideration, however is, whether a message addressed by the Governor,
could extend to subjects on which the above message dated 9.12.2015
was addressed. And also whether, the Governor could address a message
G to the Assembly in his own discretion, without seeking the aid and advice
of the Chief Minister and his Council of Ministers. Having given our
thoughtful consideration to the above, it is not possible for us to accept
the submissions advanced on behalf of the respondents. Our reasons
for not agreeing with the respondents are recorded hereinafter.
159. It is not disputed, that Section 63 of the Government oflndia
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 189
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Act, 1935 was a precursor to Article 175. Section 63 aforementioned A
has been extracted in paragraph xxx 50 xxx, herein above. A perusal of
Section 63 of the Government oflndiaAct, 1935, reveals that sub-section
(2) thereof had the words "in his discretion", incorporated therein, with
reference to the scope and ambit of the Governor's messages, to the
Legislature. It is therefore apparent, that under the Government oflndia
8
Act, 1935, the discretion to send messages to the Legislature, was clearly
and precisely 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
Government oflndiaAct, 1935. It must have been forthe above reason, c
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. Had it
been otherwise, the phrase "in his discretion" would have been retained
by the Constituent Assembly in Article 175. It was also the contention
D
on behalf of the appellants, that the messages addressed by the Governor
should be construed by accepting, that the Go1 :rnor is in no manner
associated with the legislative process, except under Article 200. A
detailed consideration in this behalf has already been recorded
hereinabove. In our considered view, the Governor's connectivity to the
House in the matter of sending messages, must be deemed to be limited E
to the extent considered appropriate by the Council of Ministers headed
by the Chief Minister. In fact, it is not possible for us to conclude
otherwise, because Article 175 does not expressly provide, in consonance
with Article 163( 1), that the Governor would exercise his above functions
"in his discretion". Thus viewed, we have no hesitation in concluding,
that messages addressed by the Governor to the House(s) have to be in
F
consonance with the aid and advice tendered to him.
160. During the course of hearing it emerged, that one of the
primary reasons for addressing the message dated 9.12.2015, was the
fact, that a notice of resolution forthe removal of the Speaker-Nabam
Rebia, dated 19.11.2015, was addressed by 13 MLAs (-11 belonging to G
the BJP, and 2 Independent MLAs), to the Secretary of the Legislative
Assembly. Accordingly, in the understanding of the Governor, it would
constitute a constitutional impropriety, ifthe above notice ofresolution
for the removal of the Speaker, was not taken up for consideration
forthwith, namely, immediately after the expiry of 14 days, provided for H
190 SUPREME COURT REPORTS [2016] 6 S.C.R.

A in the first proviso under Article 179. Insofar as the instant aspect of the
matter is concerned, whilst we do not doubt the bona /ides of the
Governor, it cannot be overlooked that the Governor has no express or
implied role under Article 179 on the subject of"the removal of Speaker
or Deputy Speaker". The aforesaid issue of removal of the Speaker (or
Deputy Speaker), squarely rests under the jurisdictional authority of the
B
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. In the instant view of
the matter, the particip~tory role at the hands of the Governor, in the
matter concerning the removal of the Speaker, can neither be understood
c nor accepted, and may well be considered as unwarranted.
161. Another important reason, for addressing the message dated
9.12.2015 to the House was, that a petition had been preferred by the
Chief Whip of the Congress Legislature Party - Rajesh Tacho on
7.12.2015, for disqualification of 14 MLAs belonging to the INC, under
D the Tenth Schedule. It was therefore, that the Governor in his message
dated 9.12.2015, ventured to inform the Presiding Officer of the Hoose,
that till the 6th session of the Assembly was prorogued, the party
composition of the House "shall" not be altered. Once again, for exactly
the same reasons, as recorded in the preceding paragraph, it is imperative
for us to express, that the Governor has no role, in the disqualification of
E members of the Assembly. The exclusive jurisdiction on the above issue,
rests with the Speaker of the Assembly, under Paragraph 6 of the Tenth
Schedule. Whether the Speaker's actions fall within the framework of
the Constitution, or otherwise, does not fall within the realm of
consideration of the Governor. The remedy for any wrong doing under
F the Tenth Schedule, lies by way ofjudicial review. Neitherthe provisions
of the Constitution nor the 'Conduct of Business Rules' assign any such
role to the Governor. It does not lie within the domain of the Governor,
to interfere with the functions of the Speaker. The Governor is not a
guide or mentor to the Speaker. The Governor cannot require the Speaker
to discharge his functions in the manner he considers constitutionally
G appropriate. Both the Governor and the Speaker have independent
constitutional responsibilities. The Governor's messages with reference
to such 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
H Minister, or the entire Council of Ministers, or an individual Minister in
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 191
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Cabinet, or forthat matter even an individual MLA, are not functioning A
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.
162. In view of the above, we have no hesitation in concluding, B
that 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 ofMfnisters 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.
c
163. For all the reasons recorded hereinabove, we are of the
considered view, that the impugned message of the Governor dated
9.12.2015 is liable to be set aside. We order accordingly.
IV.
D
Article 179 of the Constitution
I 79. "Vacation and resignation of, and removal from, the offices
of Speaker and Deputy Speaker - A member holding office as
Speaker or Deputy Speaker of an Assembly -
(a) shall vacate his office if he ceases to be a member of the
Assembly; E
(b) may at any time by writing under his hand addressed, if such
member is the Speaker, to the Deputy Speaker, and if such member
is the Deputy Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of the Assembly
passed by a majority of all the then members of the Assembly: F
Provided that no resolution for the purpose of clause (c) shall be
moved unless at least fourteen days' notice has been given of the
intention to move the resolution:
Provided further that, whenever the Assembly is dissolved, the
Speaker shall not vacate his office until immediately before the G
first meeting of the Assembly after the dissolution."
164. The deliberations and the discussions recorded hereinabove
substantiate, that even though in terms of Article 154, the executive
power of the State vests in the Governor, and further, the executive
power vested with the Gov_emor would be exercised by him either directly H
192 SUPREME COURT REPORTS [2016] 6 S.C.R.

A or through officers subordinate to him "in accordance with this
Constitution", and further, the mandate contained in Article 166 enjoins,
that all executive actions of the Government of a State are expressed in
the name of the Governor, yet Article J.63( I) leaves no room for any
doubt, that the Governor is ordained, to exercise his functions on the aid
and advice of the Cquncil of Ministers with the Chief Minister as the
B
head. Articles 154, 163 and 166 referred to above, are contained in
Chapter II of Part VLof the Constitution, which relate to the State
Executive. It is therefore apparent, that the exercise of executive power
by the Governor, is by and large notional. All in all, the Governor had a
limited scope ofauthority, relating to the exercise of executive functions,
c in his own discretion, i.e., without ahy aid and advice. The aforesaid
limited power of the Governor is exercisable in situations, expressly
provided for "by or under" the provisions of the Constitution. The position
which has briefly been recorded above, has been examined in some
detail in paragraph xxx 139 xxx of this judgment. .
D 165. Likewise, even though Article 168 includes the Governor,
and pronounces him to be a part oftheState Legislature, the provisions
of the Constitution extend no legislative responsibility to him, within the
precincts of the House or Houses of the State Legislature. Article 158
provides, that the " ... Governor shall not be a member of either House
of Parliament or of a House of the Legislature ofany State specified in
E
the First Schedule ... ". The Governor does not participate in debates
within the Legislature, nor does he have any role in any activity which
would result in the passing ofa Bill, on the floor of the House. All in all,
the legislative functionality constitutionally extended to the Governor, is
extremely limited. The role assigned to a Governor in the entire gamut
F of the legislative process; is as ascribed under Article 200. Needless to
mention, that when the House or Houses of the State Legislature are
not in session, the Governor has the power to promulgate Ordinances
under Article 213. No such legislative power is vested with the Governor,
while the House or Houses of the State Legislature are in session. But
even the power to issue Ordinances, cannot be exercised by the Governor,
G on his own. Ordinances can be issued by the Governor, only on the aid
and advice of the Council of MinisterS'with the Chief Minister as the
head. In sum and substance, the Governor is vested with extremely
limited legislative functions. The position which has been recorded above, .
has been examined in some detail in paragraph xxx 139 xxx of this
H judgment.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 193
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

166. It also needs to be kept in mind, that the appointment of the A
Governor is made under Article 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 functions
on the aid and advice of the Prime Minister and his Council of Ministers,. B
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.
167. It is in the above background, that the ambit and scope of
the role of the Governor requires to be examined, with reference to the
issue of removal of the Speaker (or the Deputy Speaker) under Article
179(c). Insofar as the issue of the removal of the Speaker is concerned,
c
the same would depend on the result 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 D
of the Speaker(orthe 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, in
our considered view, no role direct or indirect can be assumed by the E
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 niatter, we are of the opinion, that the
impugned message of the Governor dated 9.12.2015, cannot be endorsed F
as constitutionally acceptable.
168. Despite the above, the facts and circumstances of the
present case reveal, that the Governor in his alleged bona fide
determination issued the impugned message dated 9.12.2015, statedly to
advise and guide the State Legislature, to carry out its functions in G
consonance with the provisions of the Constitution, and the rules framed
under Articles 166 and 208. The question which arises for adjudication
is not, that of the Governor's bona fides. The question is of the
jurisdictional authority ofthe Governor, in the above matter. The Governor
has no direct or indirect constitutionally assigned role, in the matter of
H
194 SUPREME COURT REPORTS [2016] 6 S.C.R.

A removal of the Speaker (or the Deputy Speaker). The Governor is not
the conscience keeper of the Legislative Assembly, in the matter of
removal of the Speaker. He does not participate in any executive or
legislative responsibility, as a marshal. He has no such role assigned to
him, whereby he can assume the position of advising and guiding the
Legislative Assembly, on the question of removal of the Speaker (or
B
Deputy Speaker). Or to require the Legislative Assembly to follow a
particular course. The Governor can only perform such functioi1s, in his
own discretion, as are specifically assigned to him "by or under this
Constitution", within the framework ofArticle 163(1 ), and nothing more.
In our-final analysis, we are satisfied in concluding, that the interjects at
c the hands of the Governor, in the functioning of the State Legislature,
not expressly assigned to him, however bona.fide, would be extraneous
and without any constitutional sanction. A challenge to an action beyond
the authority of the Governor, would fall within the scope of the judicial
review, and would be liable to be set aside.
D 169. For all the reasons recorded hereinabove, we are of the
considered view, that the impugned order and message of the Governor
dated 9.12.2015 are liable to be set aside. We order accordingly.
v.
Tenth Schedule to the Constitution.
'E TENTH SCHEDULE
[Articles l02(2)and 191(2)]
"6. Decision on questions as to disqualification on ground of
defection.-( l) If any question arises as to whether a member of
a House has become subject to disqualification under this Schedule,
the question shall be referred for the decision of the Chairman or,
. F as the case may be, the Speaker of such House and his decision
shall be final:
Provided that where the question which has arisen is as to whether
the Chairman or the Speaker of a House has become subject to
such disqualification, the question shall be referred for the decision
G of such member of the House as the House may elect in this
behalf and his decision shall be final.
. . - -.
(2) All proceedings under sub-paragraph ( 1) of this paragraph in
relation to any question as to disqualification of a member of a
Hou·se under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of article 122 or, as the case may
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 195
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

be, proceedings in the Legislature of a State within the meaning A
of article 212."
170. Paragraph 6 of the Tenth Schedule has been extracted
a!:>ove. It 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 B
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
Sc he du le, as proceedings of the State Legislature.
c
171. It is apparent from a perusal of 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. The role of the D
Governor in such matters, wou Id fat I beyond the spectrum of constitutional
sanction. 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 E
the proceedings under the Tenth Schedule, one way or the other. The
fictional assumption, that the proceedings under the Tenth Schedule have
a legislative flavour, and are akin to the proceedings before the State
Legislature, further removes the Governor from any participatory role in
the same. Accordingly, in our considered view, any exercise of authority
by the Governor based on pending proceedings against members of the F
Legislative Assembly, under the Tenth Schedule, are clearly beyond his
constitutional authority. An order or message of the Governor, based on
an underlying consideration relatable to pending action(s) of
disqualification, against a member or members of the State Legislature,
would be constitutionally unsustainable. It was acknowledged by both G
sides, that the. impugned order and message of the Governor dated
9.12.2015, were prompted by the petition filed on 7.12.2015, by the Chief
Whip of the Congress Legislature Party, seeking disqualification of 14
MLAs belonging to the INC. The above position is also evident from a
perusal of the order and message dated 9.12.2015. In the above view of
the matter, it is obvious, that the order and message were actuated by a H
196 SUPREME COURT REPORTS [2016) 6 S.C.R.

A constitutionally impermissible consideration. The same are accordingly
liable to be set aside. We order accordingly.
172. The issue canvassed and answered hereinabove with
reference to the Tenth Schedule, does not fully answer the controversy
which has arisen for consideration before us. The proposition canvassed,
B also relates to the propriety of Speaker, in conducting proceedings under
the Tenth Schedule, when his own position as the Speaker of the
Legislative Assembly, is under challenge. After all, this was the real
basis of the Governor having passed the impugned order and message
dated 9.12.2015. The challenge to the Speaker's position, in the instant
case, was based on a noticeofresolution for his removal dated 19.11.2015.
c The resolution was moved by 13 MLAs (-11 belonging to the BJP, and 2
Independent MLAs). Despite the above, unmindful of the challenge raised
to his own position, the Speaker went on with the disqualification
proceedings initiated by the Chief Whip of the Congress Legislature
Party on 7.12.2015, by issuing a notice to them on 7.12.2015 itself, seeking
D their response by 14.12.2015. All the 14 MLAs aforementioned, were
disqualified by an order passed by the Speakeron 15.12.2015, under the
Tenth Schedule. Was this action of the Speaker, justified? Learned counsel
for the rival parties, pointedly addressed us on this issue. We are also of
the view, that this issue needs to be determined in view of the directions
which will eventually emerge on the basis of the consideration recorded
E
hereinabove. A repeat performance of the earlier process, would bring
the parti;s back to the threshold of this Court, for the redressal of the
same dispute, which is already before us.
173. When the position of a Speaker is under challenge, through a
notice of resolution for his removal, it would "seem" just and appropriate,
F that the Speaker first demonstrates his right to continue as such, by
winning support of the majority in the State Le~islature. 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
G 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. After all, disposal of
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 197
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the motion under Article J79(c), would take no time at all. As soon as A
the motion is moved, on the floor of the House, the decision thereon will
emerge, forthwith. Why would a Speaker who is confident of his majority,
fear a floor test? After his position as Speaker is affirmed, he would.
assuredly and with conviction, deal with the disqualification petitions,
under the Tenth Schedule. And, why should a Speaker who is not confident
B
of facing a motion, for his removal, have the right to adjudicate upon
disqualification petitions, under the Tenth Schedule? The manner in which
the matter has been examined hereinabove, is on ethical considerations.
A constitutional issue, however, must have a constitutional answer. We
shall endeavour to deal with the constitutional connotation of the instant
issue, in the following paragraphs. c
174. Just like the other provisions of the Constitution (interpreted
by us hereinabove), it would be apposite to ascertain the desired intent
of the framers of the Constitution, emerging from the Constituent
Assembly debates, with reference to Article l 79(c). In the draft.
Constitution, the present Article 179 was numbered as draft Article 158. D
One of the issues debated, with reference to draft Article 158(c) was,
with reference to the words "all the then members of the Assembly",
used therein. The above words were used to define, those who would
participate in the motion, for the removal of the Speaker. Needless to
mention, that the said words were retained in the final draft, in·Article
J 79(c). One of the members of the Constituent Assembly had suggested E
substitution of the above words, by the words, "the members of the
Assembly present and voting'', as under:
"Mr. Mohd. Tahir: Sir, I beg to move:
"That in clause (c) of article 15 8, for the words 'all the then
members of the Assembly' the words 'the members of the F
Assembly present and voting' be substituted."
Clause (c) runs as follows:
"(c) may be removed- from his office for incapacity or want of
confidence by a resolution of the Assembly passed by a majority
of all the then members of the Assembly." · G
Sir, so far as I can understand the meaning of the wording, "all the
then members of the Assembly'', it includes all the members of
the Assembly. Supposing a House is composed of300 members
then, it will mean all the members of the Assembly, that is 300,
H
198 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Supposing fifty members of the House are not present in the House,
then, those members will not have the right to give their votes so
far as this question is concerned. Therefore, I think that it would
be better that this matter shou Id be considered by only those
members who are present in the Assembly and who can vote in
the matter. If this phrase "all the then members of the Assembly"
B
means the members who are present in the Assembly, then, I
have no objection. If it means all the members of which the House
is composed, I think it is not desirable to keep the clause as it
stands.
With these few words, I move my amendment."
c The Constituent Assembly debates, do not appear to have recorded any
discussion on the above amendment. The decision on the proposed
amendment was however minuted as under:
"Mr. President: The question is:
"That in clause (c) of article 158, for words 'all the then members
D
of the Assembly' the words 'the members of the Assembly present
and voting' be substituted."
The amendment was negatived."
It is apparent, that the Constituent Assembly chose to retain the words,
"all the then members of the Assembly.", and declined to substitute them
E
with the words, "the members of the Assembly present and voting".
We are of the view, that the acceptance of one set of words, and the
rejection of the suggested substitution, would effectively render a
constitutional answer to the issue in hand.
175.Article l 79(c) provides, that a Speaker(or Deputy Speaker),
F
"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". Th~ words "all the then members"
G included in Article l 79(c), are a conscious adage. If the words "all the
then members" are excluded from clause (c) of Article 179, it would
affirm the interpretation which the appellants, wish us to adopt. The
connotation placed by the appellants, would legitimize the action of the
Speaker, in going ahead with the proceedings under the Tenth Schedule,
even though a notice of resolution for his removal from the office of
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 199
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Speaker was pending. The words "all the then members" were A
consciously added to Article 179( c), and their substitution was not
accepted by the Constituent Assembly. We are satisfied, that 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
B
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 sittingMLAs, forthe
period during which the notice of resolution forthe removal of the Speaker
(or the Deputy Speaker) is pending, would conflict with the express c
mandate of Article 179(c), requiring all "the then members" to determine
the right of the Speaker to continue.
176. It would also be relevant to notice, that the Tenth Schedule
was inserted in the Constitution, by the Constitution (Seventy-third
Amendment) Act, 1992, with effect from 24.4.199.3. The purpose sought D
to be achieved through the Tenth Schedule, is clear and unambiguous.
The same is unrelated to; and distinct from, the purpose sought to be
achieved through Article I 79(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, E
without tr!)ading into the constitutional expanse of the other. The
interpretation would have to be· such, as would maintain constitutional
purpose and harmony. We would now venture to examine the instant
issue from the above perspective, in the following paragraph.
177. If a Speaker survives the vote, on a motion for his removal F
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
rightto participate in the motion moved against the Speaker under Article G
·119(c). A disqualified MLA-, as we all know, can assail the order of his
disqualificati01( 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 l 79(c). In this situation, the process ofjudicial
H
200 SUPREME COURT REPORTS [2016) 6 S.C.R.

A 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 Speaker, 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
B
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
Speaker, whereafter, the petition for his own disqualification would
certainly be considered and decided, by the Speaker. It is apparent, that
the difficulty arises only, ifthe disqualification petition is taken up first,
c and the motion for the removal of the Speaker is taken up thereafter.
The possibility of a disqualification petition being decided on political
considerations, rather than on merits, cannot be ignored. In fact, that is a
real possibility. Therefore, while it will not adversely affect the Speaker,
if he faces the motion of his own removal from the office of Speaker,
before dealing with the disqualification petitions, it could seriously prejudice
D
MLAs facing disqualification, if petitions for their disqualification are
taken up and dealt with first. The adoption of the former course, would
also result in meaningfully giving effect to the words "all the then
members" used in Article 179(c), as discussed in the foregoing paragraph.
This interpretation would also purposefully give effect to the rejection of
E the amendment suggested during the Constituent Assembly debates, that
the motion for removal of the Speaker, should be the majority of"the
members of the Assembly present and voting". This interpretation would
also result in disregarding the retention of the words "all the then members
of the Assembly", in Article l 79(c). If the Speaker faces the motion of
his own removal first, both the constitutional provisions would have their
F
independent operational space preserved. None of the concerned
constitutional provisions would interfere with the free functionality of
the other, nor would one usurp the scheme postulated for the other. We
are therefore of the view, that constitutional purpose and constitutional
harmony would be maintained and preserved, if a Speaker refrains from
G adjudication ofa petition for disqualification under the Tenth Schedule,
whilst his own position, as Speaker, is under challenge. This would also,
allow the two provisions (Article I 79(c), and the Tenth Schedule) to
operate in their individual constitutional space, without encroaching on
the other.

H 178. For the reasons recorded hereinabove, we hereby hold, that
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 201
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

it would be constitutionally impermissible for a Speaker to adjudicate A
upon disqualification petitions under the Tenth Schedule, while a notice
ofresolution for his own removal from the office of Speaker, is pending.
VI.
The political imbroglio.
B
179. The first sequence of facts projected by the appellants,
discloses the alleged discord and dissension amongst MLAs of the ruling
INC. It was suggested, that the Governor having taken charge on
1.6.2015, acted in support ofBJP causes. It would be necessary to record,
that in the 60-member Arunachal Pradesh State Legislative Assembly,
47 MLAs had allegiance to the INC, I I MLAs to the BJP, and there c
were 2 Independent MLAs. It was urged, that MLAs owing allegiance
to the INC, had joined up with non-INC MLAs, to exploit the situation.
To harness the rebelling MLAs, resignation letters were allegedly taken
from at least 17 legislators belonging to the INC. Eventually resignation
letters of two MLAs - were accepted on 6.10.2015, leading to their
removal from the House. Efforts made by the General Secretary AICC, D
in-charge for North-Eastern States - V. Narayanasamy, President of
the Arunachal Pradesh Congress Committee - Padi Richo, the Chief
Minister - Nabam Tuki and others, to reign in the dissident MLAs, did
not have any positive effect. The dissident MLAs even addressed letters
to the Governor, in furtherance of their objective, namely, to change the E
Chief Minister - Nabam Tuki. On 12.10.2015, the President of the
Congress Legislature Party, issued a show cause notice to 19 MLAs of
the INC, for indulging in anti-party activities. The same was repulsed by
a press note issued by 21 MLAs of the iNC, denouncing the leadership
of the Chief Minister.
F
180. On 16.11.2015, a notice ofresolution for the removal of the
Deputy Speaker- Tenzing Norbu Thongdok, was statedly moved by 16
MLAs belonging to the INC. The Deputy Speaker, had been elected to
the House on an INC ticket. On 19.11.2015, 13 MLAs (-11 belonging to
the BJP, and 2 Independent MLAs), moved a similar notice of resolution
for the removal of the Speaker-Nabam Rebia. On 7.12.2015, the Chief G
Whip of the Congress Legislature Party- Rajesh Tacho, filed a petition
under the Tenth Schedule, seeking disqualification of 14 dissident MLAs
of the INC, including the Deputy Speaker-Tenzing Norbu Thongdok,
on account of their anti-party activities.
181. On 9.12.2015, to ensure that the notice for the removal of H
202 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the Speaker was taken up for consideration without any delay, the
Governor ordered the preponement of the 6th session of the Assembly
earlier scheduled for 14.1.2016, to 16.12.2015. The above order dated
9.12.2015, was passed by the Governor,. without consulting the Chief
Minister and his Council of Ministers or the Speaker. The Governor
additionally required, that the party composition of the House should not.
B
be altered, till the motion on the above notice, was disposed of. This
was done by the Governor through a message dated 9.12.2015. Through
the above message, the Governor attempted to forestall the proceedings
initiated for disqualification of 14 MLAs of the IN2, under the Tenth
Schedule. The above message dated 9.12.2015, was issued by the
c Governor, without the aid and advice of the Chief Minister and his Council
of Ministers.
182. On 14.12.2015, the Chief Minister in a Cabinet meeting,
resolved that the order of the Governor dated 9.12.2015 was
unconstitutional. And so also, the message dated 9.12.2015. The Speaker
D through his letter dated 14.12.2015, brought the above position to the
notice of the Governor. Disregarding the edict of the Governor, the Speaker
- Nabam Rebia proceeded against the 14 MLAs of the INC under the
Tenth Schedule on 14.12.2015, and ordered their disqualification and
consequent removal, from the Assembly on 15.12.2015. On the same
day - 15.12.2015, the Deputy Speaker - Tenzing Norbu Thongdok,
E quashed the order of disqualification of the 14 MLAs of the INC,
including his own disqualification. In the preponed 6th session of the
Assembly held on 16.12.2015, the resolution for the removal of the
Speaker - Nabam Rebia was adopted. All the 14 disqualified MLAs,
participated in the resolution moved against the Speaker. The motion
F was· passed. Nabam Rebia, ceased to be the Speaker of the State
Legislature, with effect from I 6. I 2.20 I 5.
183. Tht: third sequence of facts projected by the respondents,
highlights a factual disputehetween the parties, namely, whether or not
a notice of resolution for the removal of the Deputy Speaker - Ten zing
Norbu Thongdok dated 16.11.2015, had actually been moved by 16 MLAs
G
belonging to the INC. The instant determination is in addition to the
consideration and conclusion (in paragraph 69, above) recorded by us
on the same. aspect of the matter herein before. During the course of
hearing of the present controversy, we examined the material produced
before us by the rival parties, to substantiate the respective assertions.
H Based on the above examination, we may record the .following:
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 203
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

Firstly, a copy of the above notice dated 16.11.2015 had been called for, A
by the Governor through a communication dated 7.12.2015. Associated
information about the date of receipt of the notice, and the action taken
thereon, was also asked for. Even though the associated information
was furnished, yet a copy of the above notice dated 16.11.2015 was not
furnished to the Governor.
B
Secondly, in the response of the Secretary of the Legislative Assembly
dated 8.12.2015 (addressed to the office of the Governor), it was asserted,
that the notice dated 16.11.2015 was under consideration of the Speaker.
All the same, a copy of the notice for the removal of the Deputy Speaker
- Tenzing Norbu Thongdok, was not forwarded to the Governor.
c
Thirdly, the Superintendent of Police-cum-ADC to the Governor, visited
. the Secretary of the Legislative Assembly, and other officers of the
Secretariat of the Legislative Assembly, on 8.12.2015. He recorded the
entire position in a note dated 8.12.2015. He was informed by the staff,
that the notice ofresolution for the removal of the Deputy Speaker dated
16.11::Zo15, was in a file lying at the official residence of the Speaker- D
Nabam Rebia, at Itanagar. The removal of the Deputy Speaker, is to be
dealt with by the Assembly, al1d not by the Speaker. Accordingly, it was
pointed out on behalf of the respondents, that there was no reason/
occasion for the above file to be at the official residence or custody of
the Speaker. E
Fourthly, the Speaker- Nabam Rebia is the appellant before us. He has
not disputed the factual position indicated in the letter of the Secretary
of the Legislative Assembly dated 8.12.2015, or in the note of the
Superintendent of Police-cum-ADC to Governor.
Fifthly, the Speaker- Nabam Rebia did not produce the original of the F
notice dated 16.11.2015, when called for by this Court. The stance
adopted by him was, that the same is in the custody of the respondents.
Sixthly, the original notice dated 16.11.2015, was not produced before
this Court, despite the same having been called for.
G
The appellant- Nabam Rebia, has not produced sufficient material before
this Court to demonstrate, that such a notice was actually issued (or was
ever received by him). We will therefore have to proceed on the
assumption, that no such notice of resolution for the removal of the Deputy
Speaker, was ever issued on 16.11.2015, as alleged. The instant inference
has been drawn by us, forthe disposal of the present controversy. The H
204 SUPREME COURT REPORTS (2016] 6 S.C.R.

A above factual disputation, is however left open. If such a question arises
again, the rival or concerned parties, will have the liberty to lead evidence,
to enable a Court of competent jurisdiction, to determine the true factual
position, with respect to the issuance of the aforestated notice of resolution
for the removal of the Deputy Speaker - Tenzing Norbu Thongdok,
dated 16.11.2015.
B
184. The fourth sequence of facts projected by the respondents
reveals, that a notice of resolution for the removal of the Speaker -
Nabam Rebia, was moved on 19.11.2015 by 13 MLAs (- 11 belonging
to the BJP, and 2 Independent MLAs). The above event took place,
. after the 5th session of the Legislative Assembly was prorogued on
C 21.10.2015. The Governor had originally, by his order dated 3.11.2015,
summoned the House to meet on 14.1.2016 for the 6th session of the
Assembly. After issuing the above notice of resolution for the removal
of the Speaker- Nabam Rebia on 19.11.2015, the concerned 13 MLAs
addressed a letter on the same day- 19.11.2015, to the Governor. They
D sought consideration on the notice, immediately on the completion of the
notice period, provided for in the first proviso under Article 179( c ). In
their letter to the Governor, it was alleged, that the ruling political party
-did not enjoy confidence and majority of the House, as its strength had
been reduced to 25 out of the 60-member Legislative Assembly.

E 185. Immediately on receipt of the above letter dated 19.11.2015,
the Governor sought details about the notice (-dated 19.11.2015) from
the Secretary of the Legislative Assembly, requiring him to confirm the
factual position, through a series of communications dated 27.11.2015,
3.12.2015 and 7.12.2015. While the situation stood thus, the Chief Whip
of the INC - Rajesh Tacho sought disqualification of 14 MLAs
F (respondent nos. 2 to 15), belonging to his own political party-the INC,
under the Tenth Schedule, on 7.12.2015. A day thereafter, i.e., on
8.12.2015, the Secretary of the Legislative Assembly informed the
Governor, that a notice of resolution for the removal of the Speaker -
Nabam Rebia, had been received in the Legislative Assembly on
G 19.11.2015. On confirmation of the above fact, that 13 MLAs had
actually sought the removal of the Speaker, the Governor sought legal
opinion about the validity and legitimacy of the Speaker sitting in judgment
over the removal of 14 MLAs, even though a notice of resolution for the
removal of the Speaker himself, was pending in the Assembly. Believing
that there was an attempt to subvert the provisions of the Constitution,
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 205
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Governor rescheduled the 6th session of the Assembly by preponing A
the same to 16.12.2015, by his order dated 9.12.2015.
186. The fifth sequence of facts projected by the respondents
hi_$hlights, that a challenge was raised by the appellants, to the order and.
message of the Governor dated 9.12.2015, and in respect of other
connected issues, by filing Writ Petition (C) Nos. 7745of2015 and 7998 B
of2015 (on 17:12.2015 and 22.12.2015, respectively) before the Gauhati
High Court. It was asserted on behalf of the respondents, that appreciation
of the actual facts would establish, that the challenge raised before the
High Court through the above petitions, was not only unfair and
unreasonable, but also illegitimate and constituted a misuse of the
jurisdiction of the High Court. Relying on the communication addressed c
by and on behalf of the Speaker- Nabam Rebia and the Chief Minister
- Nabam Tuki, it was pointed out, that their projection through the above
letters was, thatthe order and message of the Governor dated 9.12.2015
were unconstitutional. MLAs belonging to the INC who were continuing
to extend support to the Chief Minister had taken a decision, not to allow D
the House to meet in terms of the order and message dated 9.12.2015.
In fact, the Speaker of the House, it was pointed out, had addressed a
letter to the Home Minister to ensure, that no individual be allowed to
enter the Legislative Assembly building from 15.12.2015 to 18.12.2015
(- during the entire duration, of the 6th session of the Legislative
Assembly). Not even MLAs duly elected to the House, were to be E
allowed entry in the premises of the Legislative Assembly. A request
was also made by the Speaker - Nabam Rebia, for the deployment of
IRBn (Indian Reserve Battalion) and CPMF (Central Para Military
Force) personnel, along with monitoring systems. The respondents desire
us to infer from the above sequence of events, that if those opposing the F
validity- legal and constitutional, of the order and message of the Governor,
were certain about their standpoint, they ought to have sought judicial
redress immediately. If they were right, the High Court would have
immediately ordered, course correction. It was submitted, that all efforts
were made to subvert the proceedings of the State Legislature. Only
when they had failed in their illegitimate action, they approached the G
High Court on 17.12.2015 and 22.12.2015, by which time, due process
had resulted in the decisions referred to above.
187. The sixth sequence of facts projected by the respondents,
was founded on the prevailing political situation inthe State since March/
H
206 SUPREME COURT REPORTS [2016] 6 S.C.R.

A April 2015, which got worst in September 2015 when 21 MLAs of the
INC started to oppose their own party leadership, by calling for the
removal of the Chief Minister- Nabam Tuki, and for the installation of
Kalikho Pul (a former Finance Minister of the State), in his place. In
order to quell the above disseiJsions, resignation letters of two MLAs -
Wanglam Sawin and Gabriel D. Wangsu were accepted, as it was felt
B
that this would rein in the others. The' above two MLAs approached the
High Court, which stayed the order accepting their resignations, on
7.10.2015. It was atthisjuncture, thatt~e above two MLAs amongst ii
MLAs approached the Governor, on I I.I 0.2015. They made complaints
against the Chief Minister - Nabam Tuki and the Speaker - Nabam
c Rebia, to the Governor. Shortly thereafter on 19.11.2015, 13 MLAs (- 11
from the BJP and 2 Independent MLAs) sought the removal of the
Speaker - Nabam Rebia under Article 179(c). On the same day -
19.11.~015, the above 13 MLAs met the Governor, and sought
preponement of the 6th session of the House.

D 188. The above sequence of facts, according to learned counsel
for the respondents, and the impressions of the Governor, expressed in
his letters addressed to the President dated 17. I 0.2015, 19.11.2015 and
1.12.2015 should be visualized together. It was pointed out, that only
then, it will be possible to appreciate the Governor's thought process,
when he issued the order and message dated 9.12.2015. In the letter
E dated 17.10.2015, the Governor informed the President aboutthe growing
dissidence amongst the MLAs of the INC, who seemed to be divided
into two groups, one headed by Nabam Tuki - the Chief Minister, and
the other by Kalikho Pul - a former Finance Minister of the State. The
Governor also narrated details of the acceptance of the resignation letters
F of two MLAs cifthe INC, and their intimation to the Governor, that they
had been coerced to resign. The Governor also disclosed the alleged
threats issued by unknown miscreants, to the two MLAs who had
resigned, and to Kalikho Pul. His letter pointed out, that similar threats
were also allegedly extended to members of their families. In the letter
dated 19.11.2015, the Governor infonned the President aboutthe prevailing
G political complexity, and growing dissidence amongst MLAs belonging
to the INC, including some Ministers. In his letter, the Governor also
narrated the contents of the memorandum issued by MLAs on 12.11.2015
calling for the removal of the ruling INC Government, for paving the
way for a new regime to take over. And also, the press statement issued
H by the Peoples Party of Arunachal, calling upon the Governor to require
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 207
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Chief Minister to prove his majority on the floor of the House, failing· A
,'which - to step down. In the letter dated 1.12.2015, the Governor
informed the President about the receipt of a memorandum dated
I9. l 1.2015, requiring him to prepone the 6th session of the Assembly.
This request, according to the Governor's letter, was supported by the
Peoples Party of Arunachal, on the ground that the Government headed
B
by Nabam Tuki, had completely lost the confidence of the people, and
had been reduced to a minority. A notice ofresolu,tion forthe removal of
the Speaker - Nabam Rebia dated 19. I 1.20 I 5 signed by 13 MLAs, as
well as, the dissidents within the MLAs of the INC, was again highlighted.
189. During the course of hearing, learned counsel for the
respondents, had placed reliance on the first, third, fourth, fifth and sixth
c
sequence of facts, to contend that the political turmoil which prevailed in
the State Legislature was ofa nature, which would render seeking advice
from the Council of Ministers and the Chief Minister, purposeless and
futile. It was submitted, that personal interests of constitutional authorities
- the Chief Minister and the Speaker, had brought political volatility, D
which was having an adverse effect on the_democratic functioning of
·the State Legislature. Some of the salient features highlighted to
substantiate the above assertions, may be summarized below:
Firstly, the Chief Minister- Nabam Tuki was not being accepted as the
Leader of the House by at least 2 I dissident MLAs, belonging to his E
own political party - the INC. ·in the 60-member State Legislative
Assembly, having 47 MLAs from the INC, with the 21 dissident MLAs
from the INC, the Chief Minister, according to the dissidents, could not
have mustered a vote of confidence.
Secondly, efforts made by the party leadership, including the General F
Secretary AICC in-charge for North Eastern States, the President of
Arunachal Pradesh Congress Committee, and other party leaders, could
not rein in the 2 I dissident MLAs.
Thirdly, resignation letters were taken from I 7 MLAs on 6.10.2015.
Resignation letters of2 MLAs were accepted. The said 2 MLAs from G
the INC - Wanglam Sawin and Gabriel D. Wangsu, alleged that they
had been coerced into resigning from their membership of the Legislative
Assembly. The above two MLAs approached the High Court, which
stayed the order of acceptance of their resignation on 7.10.2015, clearly
giving the Governor the impression, that their assertion of being coerced
into resigning from the membership of the Legislative Assembl~, was H
208 SUPREME COURT REPORTS [2016) 6 S.C.R.

A prima facie correct.
Fourthly, the political turmoil in the Legislative Assembly, was on account
of the complicity between the Chief Minister - Nabam Tuki and the
Speaker - Nabam Rebia. Both were related, and had joined hands to
frustrate the democratic process, to subvert the action of the rival MLAs,
B aimed attheir removal. The Chief Minister and the Speaker being cousins,
were adopting all sorts of means, in support of one another.
Fifthly, on 12. l 0.2015, the President of the Congress Legislature Party
issued a show cause notice to 19 MLAs of the INC, for indulging in anti-
party activities. The action was denounced by 21 MLAs of the INC,
c through a press note.
Sixthly, a strong impression was created, that a notice ofresolution for
the removal of the Deputy Speaker - Tenzing Norbu Thongdok dated
16.11.2015 had been moved by 16 MLAs belonging to the INC. We
have already concluded hereinabove, that the appellants have not been
D able to produce sufficient material to establish, that such a no.tice was
ever issued.
Seventhly, on 19.11.2015, 13 MLAs (-11 belonging to the BJP, and 2
Independent MLAs) issued a notice for the removal of the Speaker -
Nabam Rebia. A copy, as also, confirmation of the aforesaid notice
E sought by the Governor, was furnishea to him by the Secretary of the
Legislative Assembly.
Eighthly, the 13 MLAs who had signed the notice for the removal of the
Speaker, by their letter dated 19.11.2015, sought preponement of the 6th
session of the House, so as to be convened immediately on the completion
\F of the notice period, provided for, in the first proviso under Article 179(c).
Ninthly, the Governor addressed three communications to the Secretary
of the Legislative Assembly dated 27.11.2015, 3.12.2015, and 7.12.2015,
seeking a copy of the notice of resolution dated 16.11.2015, but the same
· was never furnished to him.
G Tenthly, the Governor's letters dated 17.10.2015, 19.11.2015 and
1.12.2015 to the President, depicting the prevailing political turmoil in the
State of Arunachal Pradesh, and highlighting the intra-party dispute
between the MLAs belonging to the INC.
Eleventhly, a meeting of the Congress Legislature Party was held on
H 3.12.2015. During the said meeting the activities of21 MLAs of the
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 209
AND OTHERS [JAGDISH SINGH KHEHAR, J.]

INC were discussed, and their anti-party activities were highlighted. A
Twelfthly, on 7.12.2015, the Chief Whip of the Congress Legislature
Party- Rajesh Tacho, sought disqualification of 14 MLAs belonging to
the INC, under the Tenth Schedule.
It was further pointed out, that the sequence of facts which transpired
after 9.12.2015 (after the Governor's order and message, dated B
9.12.2015) reveals, that the inferences drawn by the Governor, about
the prevailing political imbroglio in the Legislative Assembly, had been ·
correctly appreciated and understood by him. The subsequent events
are narrated hereunder:
Thirteenthly, on 12.12.2015, the Advocate General of the State of c
Arunachal Pradesh, on being asked, tendered his opinion with reference
to the order and·message of the Governor dated 9.12.2015. As per his
opinion, the above order and message were unconstitutional, and in
violation of the 'Conduct of Business Rules'.
F ourteenthly, a Cabinet meeting was held on 14.12.2015, wherein; based D
on the opinion of the Advocate General, the Cabinet resolved·, that the ·
orderofthe Governor dated 9.12.2015 was contrary to Article 174 read
with Article 163 and Rule 3 of the 'Conduct of Business Rules'. And
also, that the message of the Governor dated 9.12.2015 was contrary to
Article 175 and Rule 245 of the 'Conduct of Business Rules'. E.
Fifteenthly, the Secreta·ry of the Legislative Assembly wrote a letter to
the Governor dated 14.12.2015, indicating that Article 174 did not
contemplate preponement or postponement of an Assembly session,
without consultation with the Government and the Speaker. A reference
was also made to Article 175, so as to point out, that a message can be
F
addressed by the Governor, only when the House is in session.
Sixteenthly, the Officer-on-Special Duty to the Chief Minister addressed
a letter dated 14.12.2015 on behalfofthe Chief Minister and his Council
of Ministers and some other MLAs, requesting for a meeting with the
Governor. Nine Ministers including the Chief Minister met the Governor
G
on 15.12.2015, and allegedly committed acts of serious misbehaviour, at
the office/residence of the Governor, details whereof were disclosed by
the Governor to the High Court, through I.A. No.29 of2016.
Seventeenthly, on 14.12.2015, a Cabinet meeting was held, wherein a
resolution was passed by the Council of Ministers and the ChiefMinister,
H
210 SUPREME COURT REPORTS [2016] 6 S.C.R.

A requesting the Governor to recall and cancel, the order and message
dated 9.12.2015, and allow the session to be convened on 14.1.2016, as
earlier scheduled.
Eighteenthly, the Speaker - Nabam Rebia, through a communication
dated 14.12.2015, requested the Minister (Home)- Tanga Byaling, to
B provide foolproof security, in and around the Legislative Assembly
building, from 15.12.2015 to 18.12.2015, and to ensure that no individual
including MLAs, enter the Assembly building, during the above period.
Nineteenthly, on 15.12.2016, the Speaker- Nabam Rebia, disqualified
14 members of the Assembly belonging to the INC, including the Deputy
c Speaker- Tenzing Norbu Thongdok.
Twentiethly, the Deputy ,Speaker on 15.12.2015 itself, set aside the
disqualification order (-dated 15.12.2016), including his own
disqualification order.
Twenty-firstly, the notice ofresolution for the removal of the Speaker-
D Nabam Rebia, was taken up for consideration as the first item, in the
agenda of the Assembly on 16.12.2015. The resolution was adopted
resulting in the removal ofNabam Rebia, from the office of Speaker.
Twenty-secondly, during the course of the proceedings of the House
held on 17.12.2015, the Government headed by the Chief Mini-ster -
E Nabam Tuki, was declared as having lost confidence of the Legislative
Assembly. Kalikho Pul, another INC MLA, was chosen to replace the
Chief Minister. ·
190. Premised on the aforesaid factual position, it was asserted
on behalf of the respondents, that it was wholly unjustified for the
F Governor to remain silent. It was submitted that the prevailing situation
called for immediate redressal, so as to preserve the democratic process
in the State Legislature, and more particularly, to prevent high
constitutional functionaries including the ChiefMinister, the Speaker, and
Cabinet Ministers, from acting with constitutional impropriety.
G 191. We have given our thoughtful consideration to the
submissions advanced at the hands of the learned counsel for the
respondents. We shall now endeavour to deal with the position highlighted
through the factual narration summarized above. It is apparent from the
discussion and reflection recorded by us, that a Governor of a State, has
clearly defined duties, functions and responsibilities. The parameters of
H
NABAM REBlA, AND BAMANG FELIX v. DEPUTY SPEAKER 211
'. AND OTHERS [JAGDISH SINGH KHEHAR, J.]

the Governor's powers with reference to Articles 163, 174, 175, 179 and A
the Tenth Schedule, have been dealt with by us hereinabove, and need
not be repeated. We are of the view, that it needs to be asserted as a
constitutional detennination, that it is not within the realm of the Governor
to embroil himself in any political thicket. The Goverhor must remain
aloof from any disagreement, discord, disharmony, discontent or
B
dissension, within individual political pruties. The activities within a political
party,_confirming turbulence, or unrest within its ranks, are beyond the
concern of the Governor. The Governor must keep clear of any political
horse-trading, and even unsavoury political manipulations, irrespective
of the degree of their ethical repulsiveness. Who should or should not
be a leader ofa political party, is a political question, to be dealt with and c
resolved privately by the political party itself. The Governor cannot,
make such issues, a matter of his concern. The provisions of the
Constitution do not enjoin upon the Governor, the authority to resolve
disputes within a political party, or between rival political parties. The,
action of the Governor, in bringing the aforesaid factual position to the
D
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 co,nstitutional
authority, to resolve the same.
192. It is open to the Governor to take into consideration, views
E
of a breakaway group. Under Paragraph 4 of the Tenth .Schedule,
legitimacy is bestowed on a breakaway group which comprises of not
less than two thirds of the members of the concerned legislature party.
In the present case, the breakaway group belonging to the ruling INC
comprised of 21 members, whereas the INC had 4 7 MLAs in the F
prevailing 60-member Legislative Assembly. 21 MLAs belonging to the
INC did not constitute a legitimate and recognizable breakaway group.
The Governor could not in support of the protests and assertions of an
invalid breakaway group, adopt a constitutional course, recourse whereof
could be taken only in case of a constitutional crisis. As for instance,
when the Government is seen to have lost the confidence of the House. G
It has never been the position of the Governor, thatthe ChiefMinister-
Nabam Tuki, had lost the confidence of the House. Nor, that the INC
could not sustain its majority in the Assembly. Had that been the position,
the Governor would have called for a floor test. Admittedly, the Governor
never called for a floor test, nor did he ever require the Chief Minister to H
212 SUPREME COURT REPORTS (2016] 6 S.C.R.

A establish his majority in the House. The Governor's actions, based on
feuds and wrangles ofa breakaway group, which is not recognized under
the Tenth Schedule, cannot be constitutionally condescended.
193. The Governor has no role whatsoever, in the removal of the
Speaker (or the Deputy Speaker) under Article 179. The question of
B adoption or rejection of a notice of resolution, for the removal of the
Speaker, is to be determined by the legislators. Ifthe resolution for the
Speaker's removal is supported by a simple majority of the members of
the House, the motion has to be adopted, and the Speaker has to be
removed. Failing which, the motion has to be rejected. Any action taken
by the Governor, based on disputations, with reference to activities in
c which he has no role to play, is liable to be considered as extraneous. It
is not for the Governor to schedule the functioning of the Assembly. It is
also not in the Governor's domain, to schedule the agenda of the House.
The Governor has no role with reference to the ongoings in the Assembly.
The Governor must keep away, from all that goes on, within the House.
D 194. As long as the democratic process in the Assembly functions
through a Government, which has the support of the majority, there can
be no interference at the behest of the Governor. A constitutional failure
as contemplated under Article 356, is quite another matter. So also, a
constitutional failure under Article 360. Herein, the Governor has not
E treaded the procedure postulated for a constitutional breakdown.
195. There is no justification for a Governor to be disturbed about
proceedings in connection with the disqualification ofMLAs under the
Tenth Schedule. Because, the Governor has no role therein. Even the
Chief Minister and his Council of Ministers, have no concern with the
F disqualification proceedings contemplated under the Tenth Schedule.
Therefore, the legitimacy or illegitimacy thereof, is beyond consideration
of the Governor. That being the constitutional position, there can be no
justification in the Governor initiating action, based on proceedings
commenced against MLAs, under the Tenth Schedule. Any action taken
by the Governor, based on the proceedings being carried on under the
G Tenth Schedule, would be a constitutional impropriety. It is open to
individual MLAs, against whom disqualification proceedings are taken
(or who have been disqualified, and consequently have lost their
membership of the House), to seek judicial review thereof. The fact
that 14 MLAs who were disqualified by the Speaker - Nabam Rebia,
H on 15.12.2015, had approached the Gauhati High Court, which had stayed
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 213
AND OTHERS

the order of their disqualification, demonstrates that there are appropriate A
remedies in place. The Governor need not worry about, or involve himself
in, issues which are within the realm of other constitutional authorities.
The Indian Constitution provides for checks and balances, and a regime
oi redressal, for all situations.
The decision: B
196. Based on the consideration and the conclusions recorded
hereinabove, it is inevitable to conclude as under:
(i) 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 Article 163 c
read with Article 174 of the Constitution of India, and as
such, is liable to be quashed. The same is accordingly hereby
quashed.
(ii) The message of the Governor dated 9.12.2015, directing
the manner of conducting proceedings during the 6th session D
of the Arunachal Pradesh Legislative Assembly, from
16.12.2015 to 18.12.2015, is violative of Article 163 read
with Article 175 of the Constitution oflndia, and as such, is
liable to be quashed. The same is accordingly hereby
quashed. E
(iii) All steps and decisions taken by the Arunachal Pradesh
Legislative Assembly, pursuant to the Governor's order and
message dated 9.12.2015, are unsustainable in view of the
decisions at (i) and (ii) above. The same are accordingly
set aside. F
(iv) In view of the decisions at (i) to (iii) above, the status quo
ante as it prevailed on 15.12.2015, is ordered to be restored.
DIPAK MISRA, J. 1. I respectfully concur with the views
expressed on each of the aspects by my respected learned brother
Khehar, J. However, I intend to add something pertaining to the G
interpretation of Article 179( c) of the Constitution oflndia especially in
the context of the Tenth Schedule to the Constitution.
2. Article l 79(a) postulates that a Speaker or a Deputy Speaker
of the Assembly shall vacate his office if he ceases to be a member of
the Assembly. Article l 79(b) deals with resignation from the office. In H
214 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the case at hand, neither clause (a) nor clause (b) of Article 179 is
attracted. In the obtaining fact situation, the controversy pertains
singularly to the understanding of clause (c ).
3. Article 179 reads as follows:-
"179. A member holding office as Speaker or Deputy Speaker of
B an Assembly-
(a) shall vacate his office if he ceases to be a member of the
Assembly;
(b) may at any time by writing under his hand addressed, if such
member is the Speaker, to the Deputy Speaker, and if such member
C is the Deputy Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of the Assembly
passed by a majority of all the then members of the Assembly:
Provided that no resolution for the purpose of clause (c)
shall be moved unless at least fom1een days' notice has been
D given of the intention to move the resolution.
Provided further that, whenever the Assembly is dissolved,
the Speaker shall not vacate his office until immediately before
the first meeting of the Assembly after the dissolution."
[underlining by me]
E Be it immediately clarified, we are not concerned with the second
proviso.
4. The thrust of the matter is what interpretation is to be placed on
Article 179(c) and the first proviso, being diligently and respectfully
adherent to the nonns of the constitutional interpretation. I may state
F with quite promptitude the purpose of adherence should not convey that
I am confined to any kind of static principle but the principles that flow
from our organic, vibrant, flexible, inclusive and compassionate
Constitution. There are precedential guides and, ifl allow myself to say,
constitutional precepts those serve as light posts without causing any
G violen9e even remotely, to the language employed in the Constitution.
5. Jn St(lfe of K(lrn{lf(lka v. Union of India and another1 Beg,
C.J. posed the question with regard to understanding of special rules
relating to the construction of Constitution in general or of our Constitution
in particular. In that context, the learned Chief Justice spoke thus:-
H 1
( 1977) 4 sec 608
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 215
AND OTHERS [DIPAK MISRA, J.]

"83. A written Constitution, like any other enactment, is embodied A
in a document. There are certain general rules of interpretation
and construction of all documents which, no doubt, apply to the
Constitution as well. Nevertheless, the nature of a Constitution of
a sovereign Republic, which is meant to endure and stand the test
of time, the strains and stresses of changing circumstances, to
B
govern the exercise of all governmental powers, continuously, and
to determine the destiny of a nation, could be said to require a
special approach so that judicial intervention does not unduly thwart
the march of the nation towards the goals it has set before itself.
x x x x x
85. Although, a written Constitution, which is always embodied in c
a document, must necessarily be subject to the basic canons of
construction of documents, yet, its very nature as the embodiment
of the fundamental law of the land, which has to be adapted to the
changing needs of a nation, makes it imperative for Courts to
determine the meanings of its parts in keeping with its broad and D
basic purposes and objectives. This approach seems to flow from
what may be cal led a basic principle of construction of documents
of this type; that the· paramount or predominant objects and
purposes, evident from the contents, must prevai I over lesser ones
obscurely embedded here and there. The Constitutional document,
in other words, must be read as a whole and construed in keeping E
with its declared objects and its functions. The dynamic needs of
the nation, which a Constitution must fulfil, leave no room for
merely pedantic hairsplitting play with words or semantic
quibblings. This, however, does not mean that the Courts, acting
under the guise of a judicial power, which certainly extends to F
even making the Constitution, in the sense that they may
supplement it in those parts of it where the letter of the Constitution
is silent or may leave room for its development by either ordinary
legislation or judicial interpretation, can actually nullify, defeat, or
distort the reasonably clear meaning of any part of the Constitution
in order to give expression to some theories of their own about G
the broad or basic scheme of the Constitution.
86. The theory behind the Constitution which can be taken into
account for purposes of interpretation, by going even so far as to
fill what have been called the "interstices" or spaces left unfit led,
due perhaps to some deliberate vagueness or indefiniteness in the H
216 SUPREME COURT REPORTS [2016] 6 S.C.R.

A letter of the Constitution, must itself be gathered from express
provisions of the Constitution. The dubiousness of expressions
used may be cured by Courts by making their meanings clear and
definite if necessary in the light of the broad and basic purposes
set before themselves by the Constitution-makers. And, these
meanings may, in keeping with the objectives or ends which the
B
Constitution of every nation must serve, change with changing
requirements of the times. The power of judicial interpretation,
even if it includes what, may be termed «> "intersticial" law
making, cannot extend to direct conflict with express provisions
of the Constitution or to ruling them out of existence."
c remphasis added]
The aforesaid paragraphs clearly convey that judicial interpretation
cannot nullify, defeat or distort a constitutional provision or the
interpretative process cannot be in direct conflict with the express
provision of the Constitution. However, the learned Chief Justice has
D observed that constitutional document has to be read a whole and
construed keeping in view the declared objects and functions. In the
said judgment, a distinction has been drawn between "the constitutional
law" or "the fundamental law" and other laws which may be important
to constitutional matters. I think it appropriate to reproduce the said
E passage:-
" ... The "fundamental distinction" between "the constitutional
law" or "the fundamental law" and the ordinary laws, referred to
there, was meant to bring out only this difference in the uses
made of laws which, being "fundamental", can test the validity of
all other laws on a lower normative level and these other laws
F
which are so tested. In that very special or restricted sense, the
law not found in "the Constitution'' could not be ''constitutional,"
or "fundamental" law .... "
6. In S.R. Clumdhuri v. State of Pw~jab mu/ others2, a three-
Judge Bench while dwelling upon the manner in which the constitutional
G
provisions are to be interpreted had observed thus:-
"Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution must
not be construed in a narrow and pedantic sense. The words used

H '(2001 J 7 sec 126
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 217
AND OTHERS [DIPAK MISRA, J.]

may be ge11eral in terms but, their full import and true meaning, A
has to be appreciated considering the true context in which the
same are used and the purpose which they seek to achieve."
And, again:-
"lt is a settled position that debates in the Constituent Assembly
may be relied upon as an aid to interpret a constitutional provision B
because it is the function of the court to find out the intention of
the framers of the Constitution. We must remember that a
Constitution is not just a document in solemn form, but a living
framework forthe Government of the people exhibiting a sufficient
degree of cohesion and its successful working depends upon the c
democratic spirit underlying it being respected in letter and in
spirit..."
7. In this regard, I th ink it apt to reproduce a passage from the
Constitution Bench decision in M. Nagaraj am/ others v. Union of
India and others3 :-
D
"The Constituti"On is not an ephemeral legal document embodying
a set of legal rules for the passing hour. It sets out principles for
an expanding future and is intended to endure for ages to come
and consequently to be adapted to the various crises of human
affairs. Therefore, a purposive rather than a strict literal approach
to the interpretation should be adopted. A constitutional provision E
must be construed not in a narrow and constricted sense but in a
wide and liberal manner so as to anticipate and take account of
changing conditions and purposes so that a constitutional provision
does not get fossilised but remains flexible enough to meet the
newly emerging problems and challenges."
F
[emphasis supplied]
8. I have referred to the aforesaid pronouncements as they have
laid down the guidelines for understanding the text, context, the words
and the purpose of a constitutional provision. Emphasis is on flexibility,
adaptability and durability, and also not to import or implant an
interpretation which would be in conflict with the express language of G
the Constitution.
9. Having perceived the guidance from the precedents and keeping
in view the cohesive constitutional precepts, I shal I proceed to analyse
the language employed in Article l 79(c). Prior to that, I think it condign
'(2006J s sec 212 H
218 SUPREME COURT REPORTS [2016] 6 S.C.R.

A to dwell upon the importance of the office of the Speaker. There is no
shadow of doubt in my mind that to appreciate the significance of the
provision,
\
namely, Article 179( c ), in the context of constitutional
supremacy and constitutional consciousness, it is necessary to understand
the position of the Speaker in the Constitution. Office of the Speaker in
our history had its origin in 1921 when the Central Legislative Assembly
8
was constituted under the Montague-Chelmsford reforms. At that time,
office of the Speaker did not enjoy much importance. But, a significant
one, after the Constitution came into force, as is ", :.:!ent from the
constitutional scheme of ours, the Speaker enjoys high COilStitutional status
and the Constitution reposes immense faith in him. For this reason alone,
c the Speaker is expected to have a sense of elevated independence,
impeccable objectivity and irreproachable fairness, and above all absolute
impartiality. Th is expectation is the constitutional warrant; not a fond
hope and expectation of any individual or group.
I 0. The Speaker has the duty to see that business of the House is
D carried out in a decorous and disciplined manner. This functioning requires
him to have unimpeachable faith in the intrinsic marrows of the
Constitution, constitutionalism and, "Rule of Law". The faith, needless
to emphasise, should be a visible and apparent one. That is why, possibly,
former Speaker of the House of Commons of the United Kingdom,
Baroness Boothroyd", stated:-
E
"When you have been committed all your adult life to the ideals
and policies of one party, impartiality is a quality that you have to
work at. But if you cannot put aside pa11isanship you have no
right to even think of becoming Speaker." ·
I have referred to the aforesaid only to stress upon the impartial
F functioning and the constitutional neutrality of the Speaker.
l 1. The expression can be different if one wishes to choose the
metaphor of the ancients. The ancient wisdom would require the Speaker
to abandon his "purbashrama" and get wedded to "parashrama". To
elucidate, a Speaker has to constantly remain in company with the
G cherished values of incarnation of his office and not deviate even slightly
from the constitutional conscience and philosophy. His detachment has
to have perceptibility.
'THE RT HON. BARONESS BOOTHROYD. The Role of the Speaker in the 20''
Century. The Parliamentary History Yearbook Trust, Vol. 29, Issue I, Feb 2010, page
H 136
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 219
AND OTHERS [DIPAK MISRA, J.]

12. For apposite appreciation, I may refer to the Constitutional A
Assembly debates. The position of the Speaker being different, the
procedure for removal is different and, the debate in the Constituen.t
Assembly is indicative of the same:-
To quote:-
"Mr. Mohd. Tahir: Sir, I beg to move: B

"That in clause (c) of article 158, for the words 'all the then
members of the Assembly' the words 'the members of the
Assembly present and voting' be substituted."
Clause (c) runs as follows: c
"(c) may be removed from his office for incapacity or want of
confidence by a resolution of the Assembly passed by a
majority of all the then members of the Assembly".
Sir, so far as I can understand the meaning of the wording, "all the
then members of the Assembly", it includes all the members of D
the Assembly. Supposing a House is composed of300 members
then, it will mean all the members of the Assembly, that is 300.
Supposing fifty members ofthe House are not present in the House,
then, those members will not have the right to give their votes so
far as this question is concerned. Therefore, I think that it would
E
be better that this matter should be considered by only those
members who are present in the Assembly and who can vote in
the matter. If this phrase "all the then members of the Assembly"
means the members who are present in the Assembly, then, I
have no objection. If it means all the members of which the
House is composed, I think it is not desirable to keep the clause as F
it stands.
With these few words, I move my amendment".
"Mr. President: The question is :
"That in clause (c) of article 158, for words 'all the then
G
members of the Assembly' the words 'the members of the
Assembly present and voting' be substituted."
The amendment was negatived."
The factum- of negativing the proposed amendment has to be
appreciated keeping in mind the wisdom of the Founding Fathers. H
220 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 13. Presently to the anatomy of Article 179(c ). The said provision
lays focus on two aspects, namely, (i) resolution of the Assembly, and
(ii) the resolution to be passed by a majority of all the then members of
the Assembly. The first proviso commands that no resolution for the
purpose of clause (c) shall be moved unless fourteen days' notice has
been given of the intention to move the resolution. The fourteen days'
B
time as mandated by the constitutional provision gives protection to the
Speaker. lt has a salutary purpose. The Founding Fathers of the
Constitution had thought it appropriate that a resolution to be moved for
removal of the Speaker is a matter of grave constitutional consequence
and, therefore, the "intention to move the resolution", has to precede the ·
c act of moving of the resolution. Be it stated that the Rules are framed
under Article 208 of the Constitution for regulating the procedure of a
House of the Legislature of a State and the conduct of its business and
said procedures prescribe the manner of expressing the intention to move
the resolution.

D 14. While prescribing a resolution to be passed by the majority,
the framers of the Constitution have also provided for "all the then
members of the Assembly". It indicates the intention of the Founding
Fathers that "all the then members of the Assembly" have to be regarded
as to be the actual or real figure. A hypothetical argument may be
advanced that if a member dies within the prescribed period of 14 days,
E it may lead to an absurd situation. Similarly, the issue ofresignation may
arise or some may stand convicted and thereby become disqualified.
Death or resignation has to be kept in a different realm.
15. The fulcrum of the controversy is "disqualification". Different
disqualifications find mention under Article 19 l ( l) of the Constitution.
F These contingencies are quite different than the situation enshrined under
Article 19 l (2) which has been inserted by the Constitution (Fifty-second
Amendment) Act, 1985. The said sub-Article specifically refers to
disqualification under the Tenth Schedule. Article 19 l, after the
amendment, reads as follows:-
G "191. Disqualifications for membership
( 1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council
of a State -
(a) ifhe holds any office of profit under the Government oflndia
H or the Government of any State specified in the First Schedule,
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 221
AND OTHERS [DIPAK MISRA, J.]

other than an office declared by the Legislature of the State by A
law not to disqualify its holder;
(b) ifhe is of unsound mind and stands so declared by a competent
court;
(c) ifhe is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the B
citizenship of a foreign State, or is under any acknowledgement_
of allegiance or adherence to a foreign State;
(e) ifhe is so disqualified by or under any law made by Parliament.
Explanation - For the purposes of this clause, a person shall not
be deemed to hold an office of profit under the Government of c
India or the Government of any State specified in the First Schedule
by reason only that he is a Minister either for the Union or for
such State.
(2) A person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State ifhe is so D
disqualified under the Tenth Schedule".
Article 191 (2) stipulates that a person shall be disqualified for
being a member of the Legislative Assembly or Legislative Council ofa
State, ifhe is so disqualified under the Tenth Schedule. It is absolutely
different than what has been envisaged under Article 191 ( 1). Tenth
E
Schedule pertains to disqualification on ground of defection. Paragraph
2 of the Tenth Schedule deals with decision on questions as to
disqualification on ground of defection. The said paragraph is as follows:-
"6. Decision on questions as to disqualification on ground
of defection.- ( l) If any question arises as to whether a member
F
of a House has become subject to disqualification under this
Schedule, the question shall be referred for the decision of the
Chairman or, as the case may be, the Speaker of such House and
his decision shall be final:
Provided that where the question which has arisen is as to
whether the Chairman or the Speaker of a House has become G
subject to such disqualification, the question shall be referred for
the decision of such member of the House as the House may
elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in
H
222 SUPREME COURT REPORTS [2016] 6 S.C.R.

A relation to any question as to disqualification of a member of a
House under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of Article 122 or, as the case may
be, proceedings in the Legislature of a State within the meaning
of Article 212."

B 16. Paragraph 8 enables the Chairman or the Speaker of a House
to make rules for giving effect to the provisions of the Tenth Schedule.
The power conferred on the Speaker under the Tenth Schedule is
enormous. It is not to be forgotten that the Constitution of India is a
controlled constitution. It provides for checks and balances. Some are
fundamentally inherent. Founding Fathers had desired, as the debate
c would reflect, the Speaker can be removed by the resolution passed by
majority of all the then members and not by the majority of the members
present and voting. It is to borne in mind that at the time of framing of
the Constitution the Tenth Schedule was not in existence in the
Constitution. Certain grounds were mentioned in the Constitution itself
D and it has also been provided that ifa person is disqualified by or under
any law made by the Parliament. Therefore, it is necessary to sustain
the elevated position the Speaker constitutionally enjoys and also have
room for c'o1istitutional propriety. There can be myriad situations in a
democracy. The Constitution, as an organic instrument, has to be
interpreted to meet all exigencies. It has to have flexibility. Assuming the
E requisite members express their intention to move the resolution for
removal of the Speaker from the office and immediately the Speaker on
a complaint initiates action under the Tenth Schedule, and as the resolution
against th~ Speaker cannot be moved unless 14 days' notice period
expires, the members can be disqualified within the said period and the
F Speaker would gain an advantage. Thus, it can result in a situation of
constitutional conflict, that is, the conflict between the status of the
Speaker conferred by the Constitution and the position he has been given
after the constitutional amendment. The final arbiters have trusted him
regard being had to his constitutional status. It is the "constitutional trust".
Therefore, there should be perceptibility of absence of conflict. That
G apai1, it will not be in harmony with Article 179( c) or the constitutional
norm. It would also cause discord with the language employed in the
said Article. The founding fathers had deliberately retained the words
"all the then members", by negativing the proposed amendment. The
purpose of not accepting the amendment is to preserve the constitutional
H control over the situation.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 223
AND OTHERS [DJPAK MISRA, J.]

17. In this regard, I may usefully refer to Article 189 of the A
Constitution. It provides for voting in Houses, power of Houses to act
notwithstanding vacancies and quorum. Sub-Article ( 1) of Article 189
stipulates that save as otherwise provided in the Constitution, all questions
at any sitting of a House of the legislature of a State shall be determined
by a majority of votes of the members present and voting, other than the
B
Speaker or Chairman, or person acting as such. The said sub-Article
also provides that Speaker or Chairman or person acting as such shall
not vote in the first instance, but shall have and exercise a casting vote in
the case of an equality of votes. The said sub-Article, thus, clearly states
about the majority of votes of the members present and voting and
secondly, it empowers the Speaker to exercise his power of voting in c
case of equality of votes. In contradistinction to the same, Article 181
provides that Speaker or the Deputy Speaker not to preside while resolution
for his removal from office is under consideration and he is entitled to
vote in the first instance on such resolution but not in the case of an
equality of votes. Article 181 (2) which is relevant forthe present purpose
D
reads as follows:-
"(2) The Speaker shall have the right to speak in, and otherwise
to take part in the proceedings of, the Legislative Assembly while
any resolution for his r~oval from office is under consideration
in the Assembly and shall, notwithstanding anything in Article 189,
be entitled to vote only in the first instance on such resolution or E
on any other matter during such proceedings but not in the case
of an equality of votes."
18. The purpose of referring to the said Article is to highlight the
nature of participation of the Speaker when the question of his removal
arises. It is clearly different. Under the Constitution· he is entitled to take F
part in the proceedings and speak. Therefore, he is in a position to contest.
Appreciating the scheme of the Constitution and especially keeping in
view the language employed in the first proviso to Article l 79(c) it is
quite clear that it is the constitutional design that the Speaker should not
do any act in furtherance of his interest till the resolution is moved.
G
19. In this regard, it is essential to understand the character of the
Tenth Schedule. The Tenth Schedule to the Constitution has conferred
adjudicatory powers on the speaker. While deliberating on the
constitutionality of the said Schedule, the majority in Kihota Hol/olwn
v. Zac/1ilhu and others 5, has stated that:-
'(1992) 1sec309 H
224 SUPREME COURT REPORTS [2016] 6 S.C.R.

A "[G] The Speakers/Chairmen while exercising powers and
discharging functions under the Tenth Schedule act as Tribunal
adjudicating rights and obligations under the Tenth Schedule and
their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Scheme in the Tenth
B Schedulc,judicial review should not cover any stage prior to the
making of a decision by the Speakers/Chairmen. Having regard
to the constitutional intendment and the status of the repository of
the adjudicatory power, no quia timer actions are permissible, the
only exception for any interlocutory interference being cases of
interlocutory disqualifications or suspensions which may have
c grave, immediate and irreversible repercussions and consequence.
[H] That paragraph 6( 1) of the Tenth Schedule, to the extent it
seeks to impart finality to the decision of the Speakers/Chairmen
is valid. But the concept of statutory finality embodied in paragraph
6( 1) does not detract from or abrogate judicial review under Articles
D 136, 226 and 227 of the Constitution insofar as infirmities based
on violations of constitutional mandates, mala tides, non-compliance
with rules of Natural Justice and perversity, are concerned.
[I] That the deeming provision in paragraph 6(2) of the Tenth
Schedule attracts an immunity analogous to that in Articles 122(1)
and 212(1) of the Constitution as understood and explained in
E
Keshav Singh case" to protect the validity of proceedings from
mere irregularities of procedure. The deeming provision, having
regard to the words "be deemed to be proceedings in Parliament"
or "proceedings in the legislature of a State" confines the scope
of the fiction accordingly.
F [J] That contention that the investiture of adjudicatory functions
in the Speakers/Chairmen would by itself vitiate the provision on
the ground oflikelihood of political bias is unsound and is rejected.
The Speakers/Chairmen hold a pivotal position in the scheme of
narliamentaiy democracy and are guardians of the rights and
G privileges of the House. They are expected to and do take far
reaching decisions in the functioning of parliamentary democracy.
Vestiture of power to adjudicate questions under the Tenth
Schedule in such constitutional functionaries should not be
considered exceptionable".
(Emphasis added)
H '' (1965) I SCR413: AIR 1965 SC 745
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 225
AND OTHERS [DIPAK MISRA, J.]

20. The aforesaid reasoning eloquently speaks of the power, A
position and the status the office of the Speaker enjoys under the
Constitution. It also states about the scope of the fiction. The Court has
constricted the power of judicial review and restricted it to the stage
carving out ce11ain extreme exceptions. It is because the speaker, while
exercising the authority/jurisdiction, exercises the power of"constitutional
B
adjudication". The concept of constitutional adjudication has constitutional
value in a parliamentary democracy; and constitutional values sustain
the democracy in a sovereign Republic. The Speaker is expected to
maintain propriety as an adjudicator. The Speaker when functions as a
tribunal has the jurisdiction/authority to pass adverse orders. It is
therefore, required that his conduct sliould not only be impartial but such c
impartiality should be perceptible. It should be beyond any reproach. It
must reflect the trust reposed in him under the Constitution. Therefore,
the power which flows from the introduction of Tenth Schedule by
constitutional amendment is required to be hannoniously construed with
Article 179( c ). Both the provisions of the Constitution are meant to
D
subserve the purpose of sustenance of democracy which is a basic feature
of the Constitution. The majority in Mano} Narula v. Union of Imli<t7
where speaking about democracy has opined that democracy in India is
a product of the rule of law and it is not only a political philosophy but
also an embodiment of constitutional philosophy.
21. Thus, regard being had to the language employed in the Article E
179 (c) of the Constitution and the role ascribed to the Speaker under
the Tenth Schedule, it is necessary tliat the Speaker as a tribunal has to
have complete detachment and perceivable impartiality. When there is
· an expression of intention to move the resolution to remove him, it is
requisite that he should stand the test and then proceed. That is the F
intendment of Article 179(c) and the said interpretation serves the litmus
test of sustained democracy founded on Rule of Law; and the founding
fathers had so intended and the constitutional value, trust and morality
unequivocally so suggest. It would be an anathema to the concept of
constitutional adjudication, ifthe Speaker is allowed to initiate proceeding
under the Tenth Schedule of the Constitution after intention to remove G
him from his office is moved. The fourteen days period being mandatory,
the words "all the then members" gain more significance. The Constitution
has confidence in the Speaker. I would like to call it "repose of
constitutional confidence". Simultaneously, the command is to have the
'(20I4J 9 sec 1 H
226 SUPREME COURT REPORTS [2016] 6 S.C.R.

A confidence of the majority of the "actual or real figure". This understanding
is gatherable from the express provisions of the Constitution and it clearly
brings in harmony between "constitutional confidence" or trust and the
"constitutional control". Be it stated, the position has to remain the same
even after introduction of the Tenth Schedule to sustain the robust vitality
of our growing Constitution. And it embraces the seminal spirit of the
B
"Rule of Law" that controls all powers, even the prerogative powers.
22. Before parting, l may state that constitutional restraint and
discipline are revealed from the words of the Constitution and the high
constitutional functionary should remain embedded to the same with
humility, because it is humility that forms the "foundation ofregard" 8 • It
c is the ultimate constitutional vi11ue.
MADAN B. LOKUR, J. I. Leave granted.
2. The draft judgment prepared by my learned Brother Justice
Khehar details all the facts of the case and considers all the submissions
D made by learned counsel for the parties. I have had the benefit of going
through the detailed draft judgment. I am in general agreement with the
conclusions arrived at on the interpretation of Article 163 and Article
174 of the Constitution. However, my reasons for arriving at the same
conclusions are somewhat different and partly additional or supplementary,
necessitating an expression of my views. I have also gone through the
E draft judgment of my learned Brother Justice Dipak Misra and in the
view that I have taken, it is not necessary for me to expression any
opinion on his conclusions.
3. As far as the interpretation ofArticle I 75 of the Constitution is
concerned, I am of opinion that in view of the conclusions arrived at
F with regard to the interpretation of Article I63 and Article I 74 of the
Constitution, the interpretation of Article I 75 of the Constitution and the
actions of the Governor of Arunachal Pradesh in this regard are rendered
academic. It is therefore not necessary or advisable to comment, one
way or the other, on the interpretation of Article I 75 of the Constitution
G and the actions of the Governor of Arunachal Pradesh in this regard.
4. The interpretation of Article 179 of the Constitution also does
not arise in view of the conclusions arrived at on the interpretation of
A11icle 163 and Article 174 of the Constitution and the consequence
thereof.
H ' Laozi, 570-490 BCE
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 227
AND OTHERS [MADAN B. LOKUR, J.]

5. With regard to the interpretation of the Tenth Schedule of the A
Constitution and the decision of the Speakerofthe Legislative Assembly
of Arunachal Pradesh, that too is unnecessary in view of the decision
rendered by the Gauhati High Coui1 in Pema Klumdu v. Tile Speaker,
Arunacltal Pradesh Legislative Assembly' - the decision having been
delivered after judgment was reserved in these appeals.
B
6. The questions that arise for consideration, in my opinion, are
the following: ·
I. Whether, after having notified the dates of sitting of the
Legislative Assembly in consultation with the Chief Minister
and the Speaker of the House, the Governor of Arunachal c
Pradesh could cancel those dates in the exercise of 'power'
under A11icle 174(1) of the Constitution and in the exercise of
discretion under Article 163 of the Constitution?
2. Whether, after having notified the dates of sitting of the
Legislative Assembly in consultation with the Chief Minister D
and the Speaker of the House, the Governor of Arunachal
Pradesh could unilaterally alter and reschedule those notified
dates in the exercise of 'power' under Article 174(1) of the·
Constitution read with Article 163 of the Constitution by issuing
a fresh notification?
E
3. Whether generally, in the exercise of discretion under Article
163(1) of the Constitution read with Article 174(1) of the
Constitution and notwithstanding the relevant rules framed by
the Legislative Assembly under Article 208 of the Constitution,
the Governor of Arunachal Pradesh could summon the
Legislative Assembly without consulting the Chief Minister and F
the Speaker of the House?
4. Whether the message sent by the Governor of Arunachal
Pradesh on 91h December, 2015 under Article 175(2) of the
Constitution was a constitutionally valid message that ought to
have been (and was) acted upon by the Legislative Assembly? G
Historical background of Article 163 of the Constitution
7. Article 163 of the Constitution traces its origins first to Section
50 of the Government oflndiaAct, 1935 and then to Article 143 in the
1
MANU/GH/0118/2016 [decided on 30" March. 2016] H
228 SUPREME COURT REPORTS [2016] 6 S.C.R.

A draft Constitution. Section 50 of the Government of India Act, 1935
reads as follows:
"50. (I) There shall be a council of ministers to aid and advise the
Governor in the exercise of his functions, except in so far as he is
by or under this Act required to exercise his functions or any of
B them in his discretion:
Provided that nothing in this sub-section shall be construed as
preventing the Governor from exercising his individual judgment
in any case where by or under this Act he is required so to do.
(2) The Governor in his discretion may preside at meetings of the
c council of ministers.
(3) If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Act required to
act in his discretion or to exercise his individual judgment, the
decision of the Governor in his discretion shall be final, and the
validity of anything done by the Governor shall not be called in
D question on the ground that he ought or ought not to have acted in
his discretion, or ought or ought not to have exercised his individual
judgment."
8. Two impo11ant expressions find mention in Section 50 of the
Government of India Act, 1935 namely, "in his discretion" and "his
E individual judgment". These expressions are noticed in several Sections
of the Government of India Act, 1935 and came up for discussion when
Section 9 of the Government oflndia Act, 1935 (relating to the Council
of Ministers)' was discussed in the House of Commons on 28'h February,
1935. 3 In the debate, the view expressed by one of the Members of
F
' 9.( I) There shall be a council of ministers; not exceeding ten in number, to aid and advise
the Governor-General in the exercise of his functions, except in so far as he is by or under
this Act required to exercise his functions or any of them in his discretion :
Provided that nothing in this sub-Section shall be construed as preventing the Governor-
General from exercising his individual judgn1ent in any case where by or under this Act he
is required so to do.
(2) The Governor-General in his discretion may preside at meetings of the council of
G 111inisters.
(3) If any question arises whether any matter is or is not a matter as respects which the
Governor-General is by or under this Act required to act in his discretion or to exercise his
individual judgment, the decision of the Governor-General in his discretion shall be final,
and the validity of anything done by the Governor-General shall not be called in question
on the ground that he ought or ought not to have acted in his discretion, or ought or ought
not to have exercised his individual judgment.
-' http :/lhansard. mi 11 ban kS\ stems. com/common sl 19 35/feb/2 81 cIause-9-coun ci 1-o f-m in isters
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 229
AND OTHERS [MADAN B. LOKUR, J.]

Parliament was that the Governor-General acts "in his discretion" when A
he is not obliged to consult the Council ofMinisters. On the other hand,
he acts in "his individual judgment" when he consults the Council of
Ministers but does not necessarily accept its advice. This was the view
expressed by Mr. Herbert Williams:
"l beg to move, in page 7, line 3, to leave out Sub-section (3). B
J take it, Sir Dennis, that you have selected this particular
Amendment because it enables us to discuss all the major problems
which arise under this Clause-the problems of the relationship
of the Governor-General to his ministers. There are in the Sub-
section the words "in his discretion," and also the words "his
individual judgment." I want to be clear that I have interpreted
c
the significance of these words accurately, and perhaps the
Secretary of State will be good enough to contradict me if l am
inaccurate. I gather that when the Governor-General acts in his
discretion it is a case where he acts without being under the
obligation of consulting his ministers at all, and that he acts perfectly D
freely. On the other hand, when he exercises his individual
judgment, that is a case where he consults his ministers but is not
obliged to take their advice, and, therefore, his final decision may
or may not disagree with the advice tendered to him by his
ministers. I hope that I have got the correct interpretation, because
E
it is necessary in discussing this most important constitutional issue
that we should be all quite clear as to the meaning of the words
we are using. As my interpretation has not been challenged, I
assume that I have correctly interpreted the significance of these
words."4
9. This view was sought to be made more explicit by Mr. Bailey by F
adding sub-section (4) to Section 9 of the Government of India Act,
1935 in the following words:
"I beg to move, in page 7, line J2, at the end, to add: "( 4) (i) In this
Act the expression 'in his discretion' when applied to any act of
the Governor-General or any exercise of his functions or powers G
means that such act may be done and such functions and powers
may be exercised by the Governor-General without consultation
with his Ministers." "(ii) In this Act the expression 'his individual
judgment,' when applied to any act of the Governor-General or
'HC Deb 28 February 1935 vol 298 ccl327-63 H
230 SUPREME COURT REPORTS [2016] 6 S.C.R.

A any exercise of his functions or powers, means that such act may
be done and such functions and powers may be exercised by the
Governor-General only after consultation with his Ministers but
notwithstanding any advice given to him by his Ministers." I do
not want to occupy any length of time in moving this Amendment,
the point of which shortly is this: It seeks to clarify the possible
B
distinction between "discretion" and "individual judgment." I should
be very grateful ifthe learned Attorney-General would say what
is the view of the Government's legal advisers as to the distinction,
if any, between discretion and individual judgment, and whether
or not-this is most important of all-the Governor-General may
c use his individual judgment without consulting his Ministers."'
I 0. The discussion was responded to by the Solicitor-General (Sir
Donald Somervell) confirming the distinction between "in his discretion"
and "his individual judgment" as mentioned above. The opinion expressed
by the Solicitor-General was accepted by Mr. Churchill as the following
D discussion will demonstrate:
"The SOLICITOR- GENERAL (Sir Donald Somervell)
In moving this Amendment, my hon. Friend has confined himself
to asking two specific questions. He asks what is the distinction
between individual judgment and discretion. The Bill has been
E drafted in this way: The words "individual judgment" are used in
relation to actions by the Governor-General on his individual
judgment in the ordinary sense of the word within the ambit in
which normally he would be acting on the advice of his Ministers.
If within that ambit it is soughtto give the Governor-General special
powers or responsibilities, then the words "individual judgment"
F are used. They are found, for example, in Clause 12. The words
"in his discretion" are used where the Governor-General will be
acting on his own judgment but in an area outside that field. For
example, in Clause 11 the functions of the Governor-General in
respect of defence are to be exercised by him in his discretion. It
G is a matter of drafting which, once apprehended, I think it will be
agreed, is convenient and useful.
My hon. Friend asked one further point, whether when the words
"individual judgment" are used the Governor-General can act

' http: //hansard. mi 11 banksystems. com/ commons/ 193 5/fe b/2 8/ cIause-9-co un c i1-of-
H ministers
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 231
AND OTHERS [MADAN 8. LOKUR, J.]

without consulting his Ministers. The answer is that as quite A
obviously that action is in the field where normally he would be
acting on the advice of his Ministers, no cleavage between them
as to right actions can possibly have arisen, except of course as a
result of something that has happened and has been discussed;
but, of course, once he had decided that within that field action
8
must be taken, he would take it. Take quite an impossible case.
Suppose that Ministers simply do not turn up. Then, of course, he
must take the action in order to carry out the obligations conferred
upon him. I do not think that the sort of test of consultation or non-
consultation is really the clue to the meaning. The clue is that the
words "individual judgment" are used in respect of powers within c
the area in which normally in ordinary times he would be acting
on the advice of his Ministers. The words "in his discretion" are
used in respect of powers and functions outside that area.
Mr. CHURCHILL
It is, of course, a very convenient distinction between the two D
functions, and, if my memory serves me right, it is fully explained
in the report of the Joint Select Committee. Undoubtedly there is
great difficulty in describing this action and the rights of a
Governor-General under the two specific and separate methods.
I am bound to say that I agree with the Solicitor-General that if
there is a difference between the Governor-General and his E
Ministers and he exercises his individual judgment because previous
consultation with them has broken down, he will not be under
the need of consulting them any more. All parleys having come to
an end he will take the matter into his own hands and act freely. I
gather that that is so? F
The SOLICITOR-GENERAL
Yes. Of course he can, if he thinks proper and if all friendly
relations have broken down, proceed to act on his own
responsibility. I do hot mean to imply that in those circumstances
he is precluded from consulting his Ministers. At any point he G
may think it right to consuh them."6
11. The view expressed was reiterated a week later when Section
12 of the Government of India Act, 1935 (relating to the special
6
http ://hansard.mil Ibanksystems.com/commons/ 193 5/feb/28/c lause-9-council-of-
ministers H
232 SUPREME COURT REPORTS [2016] 6 S.C.R.

A responsibilities of the Governor-General) was discussed. During the
debate on 5'h March, 1935 Mr. Somerville adverted to the opinion of the
Solicitor-General and said:
"We are dealing here with a very weighty and special responsibility
of the Governor-General. Sub-section (2) of the Clause provides
B that the Governor-General shall in the exercise of his powers "use
his individual judgment," and according to the definition given to
us by the Solicitor-General last week, exercising his individual
judgment means that before he comes to a decisiv1. :;e must consult
his Indian advisers."'
12. This makes it abundantly clear that the expression "his individual
c judgment" obliges the Governor to take the aid and advice of his Council
of Ministers but he is not bound by that advice and may act in his
judgment. Mr. Churchill sought a clarification to the effect that ifthere is
a break-down of communications between the Governor-General and
his Ministers, then the Governor-General could "act freely" that is to
D say that he would be discharged of the obligation to seek the aid and
advise of the Ministers. The Solicitor-General affirmed that this is so
and that he could "proceed to act on his own responsibility." 8
Independence and the Constituent Assembly
13. After Independence, there was no intention to permit the
E Governor to exercise any discretion or to take any decision in his individual
judgment. This is clear from the India (Provisional Constitution) Order,
1947 issued in exercise of powers conferred by Section 9(l)(c) of the
Indian Independence Act, 194 7. Paragraph 3(2) of the India (Provisional
Constitution) Order, 1947 explicitly deletes the expressions "in his
F discretion", "acting in his discretion" and "exercising his individual
judgment" wherever they occur in the Government of India Act, 1935.
Paragraph 3( 1) and paragraph 3(2) of the India (Provisional Constitution)
Order, 194 7 read as follows:
"3( 1) As from the appointed day, the Government of India Act,
1935, including the provisions of that Act which have not come
G
into force before the appointed day and the India (Central
Government and Legislature)Act. 1946, shall, until other provision
7
HC Deb 05 March 1935 vol 298cc1787-887 to be found at
http://hansard.millbanksvsterns.com/commons/ 193 5/rnar/05/ela use-12-special-
responsibi Iities-of
'Sir Alladi Krishnaswarny Aiyar also refers to the "breakdown provisions" as brought
H out subsequently in this judgment.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 233
AND OTHERS [MADAN B. LOKUR, J.]

is made by or in accordance with a law made by the Constituent A
Assembly oflndia, apply to India with the omissions, additions,
adaptations and modifications directed in the following provisions
of this paragraph and in the Schedule to this Order.
(2) The following expressions shall be omitted wherever they occur,
namely, "in his discretion", "acting in his discretion" and "exercising B
his individual judgment"."
14. Apart from this explicit expression of intent, the overal 1distinction
between the two expressions "in his discretion" and "his individual
judgment" was understood and accepted by Sir B.N. Rau9 who, in his
address to I.A.S. probationers in New Delhi in June, 1948 said in the
context of the Government of India Act, 1935:
c
"There were, however, certain matters in respect of which the
Governor was required to act in his discretion without having to
consult his ministers at all and certain other matters in respect of
which he was required to exercise his individual judgment, though
bound to consult his ministers. In regard to both these classes of D
matters, the Governor was under the general control of the
Governor-General, who, in his turn, was under the general control
of the Secretary of State and, therefore, of the Parliament in
England. The area of responsible government in the provinces
was thus restricted to some extent, though not to the same extent
as under the Government of India Act of 1919 ." E
Later, in his address, he added:
"The framers of the Government oflndia Act of 1935 presumably
foresaw that the distinction, which they had attempted to draw
between the matters in respect of which the Governor was
required to act on the advice of his Council of Ministers and those F
in respect of which he was not so required, would disappear in
practice, unless special provision was made to resolve any
consequential deadlocks. Accordingly, the Act gave power to the
Governor, acting with the concurrence of the Governor-General
and subject to certain other safeguards, to proclaim - what
amounted to a suspension of responsible government in the G
province-that government could not be carried on in accordance
with the provisions of the Act." 10
' Constitutional Adviser to the Constituent Assembly
'" These quotations have been taken from ··1ndia"s Constitution in the Making•· by Sir
Benegal Rau (Edited by B. Shiva Rao). Allied Publishers Private Limited. pages 351 and
352 H
234 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 15. As mentioned above, Article 143 in the draft Constitution
corresponds to Section 50 of the Government oflndiaAct, 1935 and this
reads as follows:
"Article 143 (1) There shall be a Council of Ministers with the
Chief Minister at the head to aid and advise the Governor in the
B exercise of his functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them in
his discretion.
(2) If any question arises whether any matter is or is not a matter
as respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor in his
c discretion shall be final, and the validity of anything done by the
Governor shall not be called in question on the ground that he
ought or ought not have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered
by Ministers to the Governor shall not be inquired into in any court."
D I 6. It is significant and necessary to note that (as expected) the
expression "his individual judgment" did not find mention in Article I 43
in the draft Constitution. This is as clear an indication as any that the
framers of our Constitution did not intend that the Governor could
disregard the aid and advice of the Council of Ministers. The absence of
E the expression "his individual judgment" makes it apparent that the
Constitution framers were clear that the Governor would always be
bound by the aid and advice of the Council of Ministers. Limited elbow
room was, however, given to the Governor to act "in his discretion" in
matters permitted by or under the Constitution.
F 17. Article 143 of the draft Constitution was the subject matter of
discussion in the Constituent Assembly on 1''June, 1949. In response to
the ongoing debate, Mr. Krishnamachari expressed the view that the
retention of discretionary powers with the Governor was necessary,
subject to discussion at the appropriate stage, when other Articles of the
draft Constitution would be discussed. The only issue was whether the
G mention of discretionary powers should be in Article 143 of the draft
Constitution or in the specific Article(s). He was of opinion that it should
be mentioned in Article 143 of the draft Constitution. The view expressed
by Mr. Krishnamachari is as follows:
"Sir, it is no doubt true that certain words from this article may be
H removed, namely, those which refer to the exercise by the·
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 235
AND OTHERS [MADAN 8. LOKUR, J.]

Governor of his functions where he has to use his discretion A
irrespective of the advice tendered by his Ministers. Actually, I
think this is more by way of a safeguard, because there are specific
provisions in this Draft Constitution which occur subsequently
where the Governor is empowered to act in his discretion
irrespective of the advice tendered by his Council of Ministers.
8
There are two ways of formulating the idea underlying it. One is
to make a mention of this exception in this article 143 and
enumerating the specific power of the Governor where he can
exercise his discretion in the articles that occur subsequently, or
to leave out any mention of this power here and only state it in the
appropriate article. The former method has been followed. Here c
the general proposition is stated that the Governor has normally to
act on the advice of his Ministers except in so far as the exercise
of his discretions covered by those articles in the Constitution in
which he is specifically empowered to act in his discretion. So
long as there are articles occurring subsequently in the Constitution
D
where he is asked to act in his discretion, which completely cover
all cases of departure from the normal practice to which I see my
honourable Friend Mr. Karnath has no objection, I may refer to
article 188, I see no harm in the provision in this article being as it
is. If it happens that this House decides that in all the subsequent
articles, the discretionary power should not be there. as it may E
conceivably do, this particular provision will be ofno use and will
fall into desuetude ......... If it is necessary for the House either
to limit the discretionary power of the Governor or completely do
away with it, it could be done in the articles that occur subsequently
where specific mention is made without which this power that is
F
mentioned here cannot at all be exercised. That is the point that I
would like to draw the attention of the House to and I think the
article had better be passed as it is.""
18. Dr. Ambedkar suppo1ied the view of Mr. Kris11namachari and in
response to the debate, he stated as follows:
G
"The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I
did not think that it would have been necessary for me to speak
and take part in this debate after what my Friend, Mr. T. T.
Krishnamachari, had said on this amendment of Mr. Karnath, but
11
Constituent Assembly Debates. Vol.8. 1949. pp.490-491
H
236 SUPREME COURT REPORTS [2016] 6 S.C.R.

A as my Friend, Pandit Kunzru, pointedly asked me the question
and demanded a reply, I thought that out of courtesy I should say
a few words. Sir, the main and the crucial question is, should the
Governor have discretionary powers? It is that question which is
the main and the principal question. After we come to some decision
on this question, the other question whether the words used in the
B
last part of clause (I) of article 143 should be retained in that
article or should be transferred somewhere else could be usefully
considered. The first thing, therefore, that I propose to do is to
devote myself to this question which, as I said, is the crucial
question. It has been said in the course of the debate that the
c retention of discretionary power in the Governor is contrary to
responsible government in the provinces. It has also been said
that the retention of discretionary power in the Governor smells
of the Government of India Act, 1935, which in the main was
undemocratic. Now, speaking for myself, I have no doubt in my
mind that the retention in on the vesting the Governor with certain
D
discretionary powers is in no sense contrary to or in no sense a
negation of responsible government. I do not wish to rake up the
point because on this point I can very well satisfy the House by
reference to the provisions in the Constitution of Canada and the
Constitution of Australia. I do not think anybody in this House
E would dispute that the Canadian system of government is not a
fully responsible system of government, nor will anybody in this
House challenge that the Australian Government is not a
responsible form of government. ......... .
Pandit Hirday Nath Kunzru: Well, Dr. Ambedkar has missed
F the point of the criticism altogether. The criticism is not that in
miicle 175 some powers might not be given to the Governor, the
criticism is against vesting the Governor with certain discretionary
powers of a general nature in the article under discussion.
The Honourable Dr. B. R. Ambedkar: I think he has misread
G the article. I am sorry I do not have the Draft Constitution with
me. "Except in so far as he is by or under this Constitution," those
are the words. If the words were ''except whenever he thinks
that he should exercise this power of discretion against the wishes
or against the advice of the ministers", then I think the criticism
made by my honourable Friend Pandit Kunzru would have been
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 237
AND OTHERS [MADAN B. LOKUR, J.]

valid. The clause is a very limited clause; it says: "except in A
so far as he is by or under this Constitution". Therefore,
article 143 will have to be read in conjunction with such
other articles which specifically reserve the power to the
Governor. It is not a general clause giving the Governor
power to disregard the advice of his ministers in any matter
B
in which he finds he ought to disregard. There, I think, lies
the fallacy of the argument of my honourable Friend, Pandit
Kunzru. (Emphasis is given by me).
Therefore, as I said, having stated that there is nothing incompatible
with the retention of the discretionary power in the Governor in
specified cases with the system of responsible Government, the c
only question that arises is, how should we provide for the mention
of this discretionary power? It seems to me that there are three
ways by which this could be done. One way is to omit the words
from article 143 as my honourable Friend, Pandit Kunzru, and
others desire and to add to such articles as 175, or 188 or such D
other provisions which the House may hereafter introduce, vesting
the Governor with the discretionary power, saying notwithstanding
article 143, the Governor shall have this or that power. The other
way would be to say in a1ticle 143, "that except as provided in
articles so and so specifically mentioned-articles 175, 188, 200 or
whatever they are". But the point 1 am trying to submit to the E
House is that the House cannot escape from mentioning in some
manner that the Governor shal I have discretion.
Now the matter which seems to find some kind of favour with my
honourable Friend, Pandit Kunzru and those who have spoken in
the same way is that the words should be on1itted from here and F
should be transferred somewhere else or that the specific articles
should be mentioned in article 143. It seems to me that this is a
mere method of drafting. There is no question of substance and
no question of principle. I personally myself would be quite willing
to amend the last portion of clause (I) of aiticle 143 if I knew at G
this stage what are the provisions that this Constituent Assembly
proposes to make with regard to the vesting of the Governor with
discretionary power. My difficulty is that we have not as yet come
either to article 175 or 188 nor have we exhausted all the
possibilities of other provisions being made, vesting the Governor
H
238 SUPREME COURT REPORTS [2016] 6 S.C.R.

A with discretionary power. If I knew that, I would very readily
agree to amend aiticle 143 and to mention the specific article, but
that cannot be done now. Therefore, my submission is that no
wrong could be done ifthe words as they stand in article 143
remain as they are. They are certainly not inconsistent.
8 Shri H. V. Karnath: ls there no material difference between article
61(1) relating to the President vis-a-vis his ministers and this
article?
The Honourable Dr. B. R. Ambedkar: Of course there is,
because we do not want to vest the President with any
c discretionary power. Because the provincial Governments are
required to work in subordination to the Central Government, and
therefore, in order to see that they do act in subordination to the
Central Government the Governor will reserve certain things in
order to give the President the opportunity to see that the rules
under which the provincial Governments are supposed to act
D according to the Constitution or in subordination to the Central
Government are observed."' 2
19. On the basis of the above discussion, Article 143 of the draft
Constitut i,111 was approved as it is and is now Article 163 in the
Constituticn.
E
Conclusions on Article 163 of the Constitution
20. The sum and substance of the historical background leading
to Article 163 of the Constitution, as enacted, is this: (i) The Council of
Ministers will aid and advise the Governor in the exercise of his functions.
This is the first part of Article 163 (I) of the Constitution. The Governor
F
then has two options -(a) To reject the aid and advice of the Council of
Ministers and act in "his individual judgment". This is an illusory and
non-existent option since the Constitution does not permit it. (b) To act
on the aid and advice of the Council of Ministers. By default this is the
only real option available to him. (ii) lfthe exercise of function is beyond
G the purview of the aid and advice of the Council of Ministers but is by or
under the Constitution, the Governor can act "in his discretion". Article
163(2) of the Constitution will have reference only to the last part of
Attic le 163( I) of the Constitution and is not all-pervasive.

H "Constituent Assembly Debates. Vol.8. 1949. pp.500-502
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 239
AND OTHERS [MADAN B. LOKUR, J.]

21. If there is a break-down in communications between the A
Council of Ministers and the Governor (as imagined by Mr. Churchill),
then the Governor will not have the benefit of the aid and advice of the
Counci 1 of Ministers. In that event, the Governor may "take the matter
into his own hands and act freely." The break-down of communications
was a possibility under the Government of India Act, 1935 since it was
B
"in the main undemocratic" and there could be a break-down of
communications between the representative of His Majesty and the
Council of Ministers. However, if such a situation were to arise today in
independent India, namely, a break-down of communications between
the Governor of a State and the Council of Ministers, it would be most
unfortunate and detrimental to our democracy. In the unlikely event of a c
complete break-down of communications, the President can and must
intervene to bring in constitutional order.
Historical background of Article 174 of the Constitution
22. Article I 74(I) of the Constitution has its historical origin in
Section 62 of the Government of India Act, 193 5. This section reads as D
follows:
62. (I) The Chamber or Chambers of each Provincial Legislature
shall be summoned to meet once at least in every year, and twelve
months shall not intervene between their last sitting in one session
and the date appointed for their first sitting in the next session E
(2) Subject to the provisions of this section, the Governor may in
his discretion from time to time-
(a) summon the Chambers or either Chamber to meet at such
time and place as he thinks fit;
(b) prorogue the Chamber or Chambers; F
(c) dissolve the Legislative Assembly.
(3) The Chamber or Chambers shall he summoned to meet for
the first session of the Legislature on a day not later than six
months after the commencement of this Part of this.Act.
G
23. In the Government oflndiaAct, 1935 the Governor of a Province
had vast powers, including for example, the power to preside over a
meeting of the Council ofMinisters. 13 However, for the present purposes
it is not necessary to research into that issue since it is quite clear that
13
Section 50(2) of the Government of India Act, 1935 which reads: The Governor in
his discretion may preside at meetings of the council of ministers. H
240 SUPREME COURT REPORTS [2016] 6 S.C.R.

A with Independence, the executive and other powers, functions and
responsibilities of the Governor earlier appointed by His Majesty needed
an overhaul. This is what Article 153 of the draft Constitution sought to
achieve.
24. In the Constituent Assembly, Article 153 of the draft
B Constitution as on 21" February, 1948 substituted Section 62 of the
Government of India Act, 1935 with the following:
153. (I) The House or Houses of the Legislature of the State
shall be summoned to meet twice at least in every year, and six
months shall not intervene between their last sitting in one session
C and the date appointed for their first sitting in the next session.
(2) Subject to provisions of this article, the Governor may from
time to time -
(a) summon the House or either House to meet at such time and
place as he thinks fit;
D (b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly.
(3) The functions of the Governor under sub-clauses (a) and (c)
of clause (2) of this article shall be exercised by him in his discretion.
25. The expression "in his discretion" finds mention in clause (3) of
E Article 153 of the draft Constitution. It could be said, on a consideration
of the debate on this expression in the House of Commons and in the
Constituent Assembly, that the Governor's powers under Article 153 of
the draft Constitution were sought to be kept outside the purview of the
Council of Ministers and exercisable "in his discretion". In other words,
it could be said that while exercising his powers under Article 153 of the
F
draft Constitution, the Governor was not obliged to consult or take the
aid and advice of his Council of Ministers.
26. This Article was very briefly debated in the Constituent
Assembly on 2"ct June, 1949 and Dr. Ambedkar moved for the omission
of clause (3) in thisA1ticle. The amendment proposed by Dr. Ambedkar
G
was adopted without much discussion. Thereby, the Governor was
disentitled from summoning the House or either House "in his discretion".
Article 153 as amended was then adopted· and formed a part of the
Constitution. What was the reason for this omission? The answer is to
be found in the debate on Article 69 of the draft Constitution on l 81h
H May, 1949 (to which a reference was made in the debates).
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 241
AND OTHERS [MADAN B. LOKUR, J.]

27. Article 69 of the draft Constitution is more or less similar to A
Article 153 of the draft Constitution [except as regards the omitted clause
(3)] and it provides as follows:
69. (1) The Houses of Parliament shall be summoned to meet
twice at least in every year, and six months shall not intervene
between their last sitting in one session and the date appointed for B
their first sitting in the next session.
(2) Subject to provisions of this article, the President may from
time to time -
(a) summon the Houses or either House of Parliament to meet at
such time and place as he thinks fit; c
(b) prorogue the Houses;
(c) dissolve the House of the People.
28. During the course of the debate on Article 69 of the draft
Constitution, Prof. K.T. Shah suggested two amendments. Dr. Ambedkar
responded to the amendments proposed by stating, inter alia, that the D
business of the House has to be provided by the Executive and if the
President does not summon the House, the necessary implication is that
the Executive has no business top lace before the House for transaction.
Therefore, if anybody other than the Prime Minister required the
President to summon the House, there would be no business to transact
E
and summoning the House without any business to transact would be a
futile operation. I would imagine that for the same reason, the President
cannot suo 111010 summon the House, for there would be no business to
transact and suo 111010 summoning the House without any business to
transact would also be a futile operation. On the other hand, ifthe Prime
Minister proposed to the President to summon the Legislature and he F
did not do so, the President would be violating the Constitution and would
need to be displaced. This is what Dr. Ambedkar said:
"Then I take the two other amendments of Prof. Shah (Nos. 1473
and 14 78). The amendments as they are worded are rather
complicated. The gist of the amendments is this. Prof. Shah seems G
to think that the President may fail to summon the Parliament
either in ordinary times in accordance with the article or that he
may not even summon the legislature when there is an emergency.
Therefore he says that the power to summon the legislature where
the President has failed to perform his duty must be vested either
in the Speaker of the lower House or in the Chairman or the H
242 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Deputy Chairman of the Upper House. That is, if! have understood
it correctly, the proposition of Prof. K.T. Shah. It seems to me
that here again Prof. Shah has entirely misunderstood the whole
position. First of all, I do not understand why the President should
fail to perfonn an obligation which has been imposed upon him by
law. If the Prime Minister proposes to the President that the
8
Legislature be summoned and the President, for no reason, purely
out of wantonness or cussedness, refuses to summon it, I think
we have already got very good remedy in our own Constitution to
displace such a President. We have the right to impeach him,
because such a refusal on the part of the President to perform
c obligations ~hich have been imposed upon him would be
undoubtedly violation of the Constitution. There is therefore ample
remedy contained in that pa1iicular clause.
But, another difficulty arises if we are to accept the suggestion of
Professor K.T. Shah. Suppose for instance the President for good
D reasons does not summon the Legislature and the Speaker and
the Chairman do summon the Legislature. What is going to
happen? If the President does not summon the Legislature it means
that the Executive Government has no business which it can place
before the House for transaction. Because, that is the only ground
on which the President, on the advic;e of the Prime Minister, may
E not call the Assembly in session. Now, the Speaker cannot provide
business for the Assembly, nor can the Chairman provide it. The
business has to be provided by the Executive, that is to say, by the
Prime Minister who is going to advise the President to summon
the Legislature. Therefore, merely to give the power to the
F Speaker or the Chairman to summon the Legislature without
making proper provisions for the placing of business to be
transacted by such an Assembly called for in a session by the
Speaker or the Chairman would to my mind be a futile operation
and therefore no purp9se will be served by accepting that
amendment." 1"
G
29. Keeping the debate on Article 69 of the draft Constitution in mind
(particularly since the business of the House is to be provided by the
Executive) Article 153 of the draft Constitution did not provide for any
discretion to the Governor, as proposed by Dr. Ambedkar, to summon
the House for a "futile operation".
H " Constituent Assembly Debates. Vol.8. I 949. p. I 06
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 243
AND OTHERS [MADAN B. LOKUR, J.)

30. Article 69 of the draft Constitution was adopted as Article 85 A
of the Constitution and this reads as follows:
"85. Sessions of Parliament, Prorogation and dissolution -
(1) The Houses of Parliament shall be summoned to meet twice
at least in every year, and six months shall not intervene between
their last sitting in one session and the date appointed for their B
first sitting in the next session.
(2) Subject to the provisions of clause (1 ), the President may from
time to time -
(a) summon the Houses or either House to meet at such time and
place as he thinks fit; c
(b) prorogue the Houses;
(c) dissolve the House of the People."
31. Similarly, Article 153 of the draft Constitution was adopted as
Article 174 of the Constitution in the following form: D
"174. Sessions of the State Legislature, Prorogation and
dissolution -(1) The House or Houses of the Legislature of the
State shall be summoned to meet twice at least in every year, and
six months shall not intervene between their last sitting in one
session and the date appointed for their first sitting in the next E
session.
(2) Subject to the provisions of clause (1 ), the Governor may from
time to time -
(a) summon the House or either House to meet at such time and
place as he th inks fit ; F

(b) prorogue the House or Houses;
(c) dissolve the Legislative Assembly."
32. The absence of any discretion in the President to summon or
prorogue the House or dissolve the House of the People and the deletion G
of clause (3) in Article 153 of the draft Constitution makes it quite clear
that the President and the Governor can act underA1iicle 85 of the
Constitution and Article 174 of the Constitution respectively only on the
aid and advise of the Council of Ministers. No independent authority is '
given either to the President or the Governor in this regard.
H
244 SUPREME COURT REPORTS [2016] 6 S.C.R.

A Need to amend Article 85 and Article 174 of the Constitution
33. As luck would have it, the then Members of Parliament took
their parliamentary duties and obligations with utmost sincerity and
seriousness and so the actual working of Article 85 of the Constitution
posed some problems. This led to the First Amendment to the
B Constitution.
34. The parliamentary debate of I 61h May, 1951 shows that when
the Constitution (First Amendment) Bill was moved by Prime Minister
Jawaharlal Nehru, he pointed out that Parliament had been in continuous
session since November ( 1950) and the session was likely to carry on.
c Under these circumstances, some "acute interpreters" might hold the
view that Parliament had not met in J 951 strictly in terms of the
Constitution since Parliament had not been prorogued and the President
had not addressed it. This would lead to a curious situation that if
Parliament met continuously, then it could be interpreted that Parliament
had not met at all! This is what he said:
D
"[O]ne of the articles - for the moment - I forget the number -
lays down that this House should meet twice a year and the
President should address it. Now a possible interpretation of that
is that this House has not met at all this year. It is an extraordinary
position considering that time this House has labored more than
E probably at any time in the previous history of this or the preceding
Parliament in this country. We have been practically sitting with
an interval round about Xmas since November and we are likely
to carry on and yet it may be held by some acute interpreters that
we have not met at all this year strictly in terms of the Constitution
F because we started meeting in November and we have not met
again - it has not been prorogued - the President has not addressed
Parliament this year. Put it in the extreme way, suppose this
House met for the fu II year without break except short breaks, it
worked for 12 months, then it may be said under the strict letter
of the law that is has not met at all this year. Of course that
G article was mean not to come in the way of our work but to come
in the way of our leisure. It was indeed meant and it must meet at
least twice a year and there should not be more than six months'
interval between the meetings. It did not want any Government
of the day simply to sit tight without the House meeting. Therefore
H it wanted to compel it by the force of the Constitution and meet at
NABAM REB!A, AND BAMANG FELIX v. DEPUTY SPEAKER 245
AND OTHERS [MADAN B. LOKUR, J.]

least twice a year but without a big gap. That again by A
interpretation leaves the curious situation that if you continue
meeting, you do not meet at all!""
35. When Prime Minister Jawaharlal Nehru replied to the debate on
this aspect on 2"ct June, 1951 he reiterated that according to the strict
meaning of Article 85 of the Constitution, Parliament had not "met" at B
all in 1951 since it had been summoned in 1950. It was to overcome this
difficulty that an amendment was proposed to Article 85 of the
Constitution. In another context, it was pointed out that Article 85 of the
Constitution raises the questions-who should summon Parliament; who
can summon Parliament and who only can summon Parliament. Giving
a reply, he said that under the Constitution, only the President can summon
c
Parliament and if he does not do his duty, then other consequences may
well arise. Similarly, if Parliament is not summoned within six months, it
is a deliberate breach of the Constitution by the President and the
Government of the day. It must be presumed that some final authority
will function according to the Constitution and if it does not "then you D
pick the axe and cut off the head, whether he is a President or anybody."
This is what was said by Prime Minister Jawaharlal Nehru:
''It was because of this actual difficulty, that it was thought that
this article might be changed so that this question of being
summoned twice a year need not be there, because if we are E
meeting all the time, then are we to break up simply to be
summoned again? Of course, we may be summoned twice a year
or more .......... ..
That is to say, this article 85 actually deals, in the passive and the
active, in both the voices, with who should summon, who can F
summon and who only can summon - there is no other authority
which can summon, unless of course there is a breach of the
Constitution and other things come into play. Therefore, as the
Constitution is, it is only the President who can summon it, and if
the President does not do his duty then other consequences may
well arise. .. .. .. .. . G
............ [O]ur saying, "the President shall summon" is much
more mandatory on the President than saying, as it is said here,
" Parliamentary Debates Part ll - Proceedings other than Questions and Answers.
Onicial Rcpon Volume XII, 1951 ( 15 May 1951 -6 June 1951). Third Session (Second
Part) of Parliament of India. 1951 =(First Amendment) Bill 16 May 1951 p.8819 H
246 SUPREME COURT REPORTS [2016) 6 S.C.R.

A "'The Houses of Parliament shall be summoned" and the President
shall do so. The meaning is the same but if the President does not
summon within six months it is a deliberate breach of the
Constitution by the President and the Government of the day. It
does not require any argument - you catch him immediately he
has not done a duty laid down, which is here an indirect duty.
8
May be some minor excuse the President may advance, or not.
Therefore, in a sense you bind down the President - and when l
say the President l mean the Government of the day which is also
bound down by the Constitution to do a certain thing. lfthey do
not do it then other consequences follow. They have deliberately
c flouted the Constitution. What happens then? Well, many things
may happen. Parliament then presumably comes into conflict
with the usurping Government, or the Government that carries on
without the goodwill of Parliament and the people. Well, a conflict
occurs. That kind of a thing would, if it occurs, presumably be
decided by the normal constitutional means - other means may
D come into play, one does not know ........ .
. . . . . . . . . . . . After all you have ultimately to have some final
authority which you presume will function according to the
Constitution. If it does not then you pick the axe and cut
off the head, whether he is a President or anybody. That is
E the normal practice in Constitutions: that is the normal
practice in revolutions. I do not understand the middle practice
ofconfusing a Constitution with a revolution and a revolution with
a Constitution. I therefore, submit that the wording suggested is
the right wording. It does not endanger the Constitution; it does
F not give any special or additional powers to the President to come
in the way. Such powers as he gets, such mischief as the future
President might do, is always inherent in the nature of things and
inherent also in the power of the people to put an end to the
President who does that mischief." (Emphasis is given by me). 16

G 36. The amendment proposed by Prime Minister Jawaharlal Nehru
was then accepted and Article 85 of the Constitution was amended to
read as follows:
11
' Parliamentary Debates Part II - Proceedings other than Questions and Answers.
Official Report Volume XII. 1951 ( 15 May 1951 - 6 June 1951 ). Third Session (Second
Part) of Parliament of India. 1951 =(First Amendment) Bill 2 June 1951 p.9957 and
H 9959
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 247
AND OTHERS [MADAN B. LOKUR, J.]

"85. Sessions of Parliament, prorogation and dissolution - A
(I) The President shall from time to time summon each House of
Parliament to meet at such time and place as he thinks fit, but six
months shall not intervene between its last sitting in one session
and the date appointed for its first sitting in the next session.
(2) The President may from time to time - B
(a) prorogue the Houses or either House;
(b) dissolve the House of the People."
37. The corresponding provision for the Legislative Assembly for
the States (Article 174 of the Constitution) was amended to read as
~~ c
"174. Sessions of the State Legislature, prorogation and
dissolution - (1) The Governor shall from time to time summon
the House or each House of the Legislature of the State to meet
at such time and place as he thinks fit, but six months shall not
intervene between its last sitting in one session and the date D
appointed for its first sitting in the next session.
(2) The Governor may from time to time -
(a) prorogue the House or either House;
(b) dissolve the Legislative Assembly."
38. Although no authority other than the President or the Governor E
could summon the House, no discretion was conferred on either of them
to do so, on his own or suo moto. Clearly, therefore, the President or the
Governor can summon the House only on the aid and advice of the
Council of Ministers.
Conclusions on Article 174 of the Constitution. F
39. The historical backgroTffid and the debates pertaining to Article
174 (and Article 85) of the Constitution lead to the conclusion that it is
only the Governor who may summon the Legislative Assembly, but only
on the advice of the Council of Ministers and not suo moto. In other
words, the Governor cannot summon the Legislative Assembly "in his G
discretion". If the Governor does so, there would be no business to
transact and summoning the House in such a situation would be a futile
operation. The Governor cannot manufacture any business for the House
to transact, through a so-called message or otherwise. If the Governor
disregards the advice of the Council of Ministers for summoning the
H
248 SUPREME COURT REPORTS [2016] 6 S.C.R.

A House, necessary consequences would follow. In this regard, it may be
mentioned that ifthe President disregards the advice of the Council of
Ministers he can impeached. As far as the Governor is concerned, if he
disregards the advice of the Council of Ministers the pleasure of the
President can be withdrawn since the Governor holds office during his
pleasure. On a different note. if the Legislative Assembly does not meet
B
once in six months, there would be a breach of the Constitution requiring
severe sanction.
40. I-low do the decisions of this Court interpret these provisions
of the Constitution and is the interpretation in harmoay with the intention
of the Constitution framers?
c
Decisions of this Court
41. The first decision that needs to be referred to is Rai Saltib
Ram Jawaya Kapur v. The State of Punjab." The Constitution Bench
of this Court acknowledged the difficulty in framing an exhaustive
D definition of 'executive function' or 'executive power'. While
acknowledging that the separation of powers in our Constitution is not
rigid, this Court observed that one organ of the State cannot assume the
functions or powers of another organ. It was held:
"It may not be possible to frame an exhaustive definition of what
E executive function means and implies. Ordinarily the executive
power connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away. The Indian
Constitution has not indeed recognised the doctrine of separation
of powers in its absolute rigidity but the functions of the different
parts or branches of the Government have been sufficiently
F differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organ or
part of the State, of functions that essentially belong to another."
42. Proceeding further in this regard, the functions and responsibilities
of the Executive were briefly mentioned in the following words:
G
"Our Constitution, though federal in its structure, is modelled on
the British Parliamentary system where the executive is deemed
to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the
condition precedent to the exercise of this responsibility is its
H 17
[ 1955] 2 SCR 225 (5 Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 249
AND OTHERS [MADAN B. LOKUR, J.]

retaining the ·confidence of the legislative branch of the State. A
The executive function comprises both the determination of the
policy as well as carrying it into execution."
43. With reference to the interplay between the Legislature and the
Executive, this Court acknowledged the supremacy of the Legislature
over the Executive and held that, under the Constitution, the Governor B
who exercises executive power is nevertheless a formal or constitutional
head of the Executive, with the real executive power vested in the
Council of Ministers. This is what was said:
"In India, as in England, the executive has to act subject to the
control of the legislature; but in what way is this control exercised C
by the legislature? Under article 53( 1) of our Constitution, the
executive power of the Union is vested in the President but under
article 75 there is to be a Council of Minister with the Prime
Minister atthe head to aid and advise the President in the exercise
of his functions. The President has thus been made a formal or
constitutional head of the executive and the real executive powers D
are vested in the Ministers or the Cabinet. The same provisions
obtain in regard to the Government of States; the Governor or the
Rajpramukh, as the case may be, occupies the position of the
head of the executive in the State but it is virtually the Council of
Ministers in each State that carries on the executive Government. E
In the Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the Council of Ministers
consisting, as itdoes, of the members of the legislature is, like the
British Cabinet, "a hyphen which joins, a buckle which fastens
the legislative part of the State to the executive part." The Cabinet
enjoying, as it does, a majority in the legislature concentrates in F
itself the virtual control of both legislative and executive functions;
and as the Ministers constituting the Cabinet are presumably agreed
on fundamentals and act on the principle of collective responsibility,
the most important questions of policy are all formulated by them."
44. The significance of this view is that it recognized that the Governor G
is only a formal or constitutional head. His executive functions are,
therefore, dependent on the aid and advice given by the Council of
Ministers. Since there is no provision enabling the Governor to act in
"his individual judgment" the Governor is bound by the advice of the
Council ofMinisters with whose aid he acts. This is completely in harmony H
250 SUPREME COURT REPORTS [2016] 6 S.C.R.

A and consonance with the views of the Constituent Assembly. Moreover,
there is a recognition and acceptance that since the Council of Ministers
enjoys a majority in the Legislature, it is in virtual control of both the
executive and legislative functions of the Governor. Therefore, the
Governor has little or no authority over the Executive or the Legislature,
except to the extent specifically provided for in the Constitution.
B
45. Soon after the decision rendered in R(li S(l/lib R(lm Jmvay(l
K(lpur, a rather peculiar situation arose in the Calcutta High Court. In
Malmbir Pmscul S/i(lrma v. Pra/ul/a Chmulra G/wse 18 the facts were
rather complicated. However, to briefly summarize them it may be stated
that in the perception of the Governor of the State, Chief Minister Ajoy
c Kumar 1\4.ukherjee had apparently lost the confidence of the Legislative
Assembly. Accordingly, the Governor requested the Chief Minister to
call the Legislative Assembly and prove his majority in the House. The
Chief Minister was more than once requested to call the Legislative
Assembly in the month ofNovember, 1967 but he declined to do so, on
D the ground that it had been decided to call the Legislative Assembly on
18'h December, 1967.
46. In view of the Chief Minister's recalcitrance, the Governor
dismissed him and his Council of Ministers on 21 "November, 1967 and
appointed P.C. Ghose as the Chief Minister. The dismissal of the Chief
E Minister and the appointment of P.C. Ghose by the Governor were in
apparent exercise of powers conferred by Article 164( I) of the
Constitution.
47. A petition was filed in the Calcutta High Court for a writ of
quo warranto to explain the legal basis for the appointment of P.C.
F Ghose as the Chief Minister. In this context, it was observed that the
dismissal of Ajoy Kumar Mukherjee as the Chief Minister was beyond
the scope of the writ application and that the validity of the dismissal
arose only incidentally. However, it was later held in the judgment that a
Minister holds office during the pleasure of the Governor and under
Article 164(1) of the Constituti"on the withdrawal of pleasure is entirely
G the discretion of the Governor and in view of Article 163(2) of the
Constitution that exercise of discretion cannot be questioned. As far as
the appointment of P.C. Ghose is concerned, it was held that there was
no restriction on the Governor in Article 164( I) of the Constitution in the
matter of the appointment of the Chief Minister.
H " ( 1968) 72 CWN 328
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 251
AND OTHERS [MADAN B. LOKUR, J.]

48. The High Court also took the view that if the Chief Minister A
and the Council of Ministers refuse to vacate office after the Legislative
Assembly had expressed no confidence in them, the Governor is entitled
to withdraw his pleasure under Article 164( I) of the Constitution. It was
held that the power of the Governor in this regard is exclusive, absolute
and unrestricted and cannot be called in question in view ofArticle 163(2)
B
of the Constitution. The High Court also held that if the Council of
Ministers lost its majority in the Legislative Assembly, the Governor was
not bound to accept its advice. In this regard, the High Court observed:
"Can it be said that the Governor is bound to act, in appointing a Chief
Minister, on the advice of the outgoing Chief Minister who has lost his
majority in the Legislative Assembly as a result of the General Election? c
I think not." In view of its findings, the High Court held that the
appointment of P.C. Gl10se as the Chief Minister was in accordance
with law and the Constitution and could not be called in question.
49. It may be mentioned that a submission was made in the High
Court that in the event of a deadlock between the Governor and the D
Chief Minister, a proclamation in terms of Article 356 of the Constitution
could be issued by the President but that line of thought was not carried
forward by the High Court.
50. In some respects the decision of the Calcutta High Court goes
well beyond the law laid down by this Court in Rai Sahib Ram Jmvaya E
Kapur. Some of the conclusions are in the nature of sweeping
generalizations and in my opinion Mahabir Prasad Sharma does not
lay down the correct law. I am in agreement with Justice Khehar in this
regard. Mahabir Prasad Sh((rma confers excessive powers on the
Governor, well beyond his status as a formal or constitutional head of
the Executive. The decision also enables the Governor to unilaterally F
decide whether a Chief Minister has lost the majority of the Legislative
Assembly or not, a function exclusively of the Legislative Assembly.
The decision enables the Governor to take an unch<;:cked decision "in his
discretion" that a Chief Minister has lost the majority of the Legislative
Assembly and then dismiss him. G
51. Reference may now be made to St((/e of Punjab v. Satya Pal
Dang 19 in which the facts were rather extraordinary. Briefly, the annual
budget of the State was to be considered by the Legislative Assembly
and the Financial Statement was discussed in the Assembly on 4'", 5'"
19
[1969] I SCR 478 (5 Judges) H
252 SUPREME COURT REPORTS [2016] 6 S.C.R.

A and 6th March, 1968. On the last day, following some disturbance in the
House and consequent disciplinary action, a Resolution was moved
expressing no confidence in the Speaker. The House granted leave for
the discussion and adjourned for the next day.
52. On 7th March, 1968 the Speaker declared the motion of no
B confidence to be unconstitutional and deemed not to have been moved.
Following some rowdy scenes, the Speaker then adjourned the Assembly
for two months that is till 6th May, 1968. Since the annual budget was
not adopted no expenditure could be made in the State from I" April,
1968. This led to a political and financial crisis of sorts.
53. Under these peculiar and extraordinary circumstances, the
c Governor prorogued the Assembly on 11th March, 1968 in exercise of
his "constitutional powers" under Article 174(2)(a) of the Constitution.
On 13th March, 1968 the Governor pro mu Igated The Punjab Legislature
(Regulation of Procedure in relation to Financial Business) Ordinance,
1968. Thereafter, on 14th March, 1968 the Governor summoned the
D Assembly for] 8th March, 1968 in exercise of his 'constitutional powers'
under Article 174(1) of the Constitution and directed the Assembly, in
exercise of his 'constitutional powers' under Article 175(2) of the
Constitution, to consider certain items.
54. When the Assembly met, the Speaker ruled that the House
E was not prorogued on 11th March, 1968 but on 18'" March, 1968 and
ruled that the proclamation of the Governor dated 14'h March, 1968
summoning the House was illegal and void and that he had no power to
re-summon the House once adjourned. Therefore, in accordance with
the earlier ruling dated 7•h March, 1968 the House stood adjourned for
two months from that date.
F 55. Thereafter, following some disturbance, uproar and furore in
the House, the Deputy Speaker occupied the Speaker's chair and
declared the adjournment by the Speaker null and void. The financial
business was then transacted and completed and two Appropriation Bills
and other financial demands were passed. The Governor gave his assent
G to the Appropriation Bills.
56. Two writ petitions were filed in the Punjab & Haryana High
Court challenging, inter ulia, the prorogation and re-summoning of the
Assembly, the Ordinance issued by the Governor on l 3'h March, 1968
as well as the Appropriation Acts to which the Governor had given his
assent. A Full Bench of the High Court unanimously held the prorogation
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 253
AND OTHERS [MADAN B. LOKUR, J.]

and re-summoning of the Assembly to be regular and legal and that the A
two Appropriation Acts were unconstitutional and held by majority that
tho: Ordinance was also unconstitutional.
57. The decision of the High Court was the subject matter of
appeals before this Court. It was observed that the Governor had two
options before him: (a) To require the Ministers to ask the Speaker to B
recall the Assembly. This Court felt that this was attempting the impossible
[break-down theory in play] and (b) To prorogue the Assembly and then
re-summon it.
58. Referring to Article 174(2) of the Constitution it was held that
it does not indicate any restrictions on the power of the Governor to
prorogue the House. However, whether a Governor is justified in
c
proroguing the Legislature when it is in session is a question that did not
fall for consideration. What was more in question than the conduct of
the Governor was the bonafides of the Speaker's ruling adjourning the
Assembly for two months when the Financial Statement and the Budget
were on the agenda and time was running out. No ma/a fides were D
attributed to the Governor and his power being untrammeled by the
Constitution, an emergency having arisen, the actions taken by the
Governor were perfectly understandable. It was also held that the
Governor had not only acted properly but in the only constitutional way
open to him and there was no abuse of power nor could his motives be
described as ma/a fide.
E
59. This Court also held that the prorogation of the Assembly
became effective on 11th March, 1968 when the Governor issued a pub Iic
notification. It was also held that the re-summoning of the Legislature
immediately afterwards was also a step in the right direction and it set
up once again the democratic machinery in the State which had been F
rudely disturbed by the Speaker. In fact, the Governor restored
parliamentary Government by adopting the course that he did.
60. However, while concluding its decisk.1, this Court observed
that "The situation created in the State of Punjab was unique and was
reminiscent of the happenings in the age of the Stuai1s." Undoubtedly G
so. The action of the Governor was drastic but constitutional and resulted
from a desire to set right a "desperate situation". This Court allowed the
appeals and set aside the judgment of the High Court and ordered the
dismissal of the two writ petitions filed in the Punjab & Haryana High
Court.
H
254 SUPREME COURT REPORTS [2016] 6 S.C.R.

A 61. The facts in Satya Pal Dang were unique and extraordinary,
but it is important to note that this Court did not consider or even refer to
Article 163 of the Constitution. Therefore, this decision really does not
take this discussion much further and reference to it is really quite futile.
62. The powers of the Governor, including his discretionary powers,
B came up for consideration in Samsher Singh v. State ofPunjab'" which
decision is of considerable importance. The question before a Bench of
seven judges was whether the Governor exercises his power of
appointment and removal of members of the Subordinate Judicial Service
under A1ticle 234 of the Constitution 21 personally or on the aid and advice
of the Council of Ministers. The appellant Samsher Singh contended
c that the Governor could exercise his power only personally and relied on
Sardari Lal v. U11io11 of India'' as well as Article 163(3) of the
Constitution.
63. Chief Justice A.N. Ray (speaking for himself and four other
learned Judges) held that the expression "in his discretion" is used in
D those Articles of the Constitution that confer special responsibilities on
the Governor. Reference was made to the deletion of the expression "in
his discretion" from the draft Constitution in Articles 144(6) [totally
omitted], 153(3) [now Article 174], 175 (proviso) [now Article 200], 188
[totally omitted], 285( I) and (2) [now Article 316] and paragraph 15(3)
E of the Sixth Schedule [totally omitted]. This was noted to be in stark
contrast to Articles 371-A(l)(b), 371-A(l)(d), 371-A(2)(b) and 371-
A(2)(f) as well as paragraphs 9(2) and 18(3) [since deleted on 21"
January, 1971] in the Sixth Schedule to the Constitution which confer
special responsibilities on the Governor and use the expression "in his
discretion". Jn this context, it was concluded in paragraph 28 of the
F Report:
"Under the Cabinet system of Government as embodied in our
Constitution the Governor is the constitutional or formal head of
the State and he exercises all his powers and functions conferred
on him by or under the Constitution on the aid and advice of his
G
"'(1974) 2 sec 831 (7 Judges)
21
234. Recruitment of persons other than district judges to the judicial service.-
Appointments of persons other than district judges to the judicial service of a State
shall be made by the Governor of the State in accordance with rules made by him in that
behalf after consultation with the State Public Service Commission and with the High
Court exercisingjurisdiction in relation to such State.
H "(1971) I SCC411 (5Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 255
AND OTHERS [MADAN B. LOKUR, J.]

Council of Ministers save in spheres where the Governor is A
required by or under the Constitution to exercise his functions in
his discretion."
64. Explaining this, and referring to English constitutional law, which
is incorporated in our Constitution, it was held in paragraph 32 of the
Report: B
"It is a fundamental principle of English Constitutional law that
Ministers must accept responsibility for every executive act. In
England the Sovereign never acts on his own responsibility. The
power of the Sovereign is conditioned by the practical rule that
the Crown must find advisers to bear responsibility for his action. C
Those advisers must have the confidence of the House of
Commons. This rule of English Constitutional law is incorporated
in our Constitution. The Indian Constitution envisages a
Parliamentary and responsible form of Government at the Centre
and in the States and not a Presidential form of Government. The
powers of the Governor as the constitutional head are not D
different."
A minor point of departure was noticed in paragraph 44 of the Report
wherein it was held that there is no distinction between functions of the
Union (or State) and the functions of the President (or Governor) except
in respect of those functions that the Governor has to exercise in his E
discretion. This reads as follows:
"The distinction made by this Court between the executive
functions of the Union and the executive functions ofthc President
does not lead to miy conclusion that the President is not the
constitutional head of Government. Article 74(1) provides for the F
Council of Ministers to aid and advise the President in the exercise
of his functions. Article 163(1) makes similar provision for a
Council of Ministers to aid and advise the Governor. Therefore,
whether the functions exercised by the President are functions of
the Union or the functions of the President they have equally to G
be exercised with the aid and advice of the Council of Ministers,
and the same is true of the functions of the Governor except
those which he has to exercise in his discretion."
65. In this background and context, it was noted that when the
Governor exercises his functions and powers with the aid and advice of
H
256 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the Council of Ministers, he does so by making rules for the more
convenient transaction and allocation of business in accordance with
Article 166(3) oftlrn Constitution. Consequently, the decision rendered
in Sardari Lal was required to be overruled (and it was overruled) and
it was held in paragraph 48 of the Report after referring to Rai Sahib
Ram Jawaya Kapur:
B
"The President as well as the Governor is the constitutional or
formal head. The President as well as the Governor exercises his
powers and functions conferred on him by or under the Constitution
on the aid and advice of his Council of Ministers, save in spheres
where the Governor is required by or under the Constitution to
c exercise his functions in his discretion. Wherever the Constitution
requires the satisfaction of the President or the Governor for the
exercise by the President or the Governor of any power or function,
the satisfaction required by the Constitution is not the personal
satisfaction of the President or Governor but the satisfaction of
D the President or Governor in the constitutional sense in the Cabinet
system of Government, that is, satisfaction of his Council of
Ministers on whose aid and advice the President or the Governor
generally exercises all his powers and functions. The decision of
any Minister or officer under Rules of Business made under any
of these two Articles 77(3) and 166(3) is the decision of the
E President or the Governor respectively. These articles did not
provide for any delegation. Therefore, the decision ofa Minister
or officer under the Rules of Business is the decision of the
President or the Governor."
66. On the issue of discretionary powers ofthe Governor, paragraph
F 54 of the Report is important and the shift in bearing responsibility is
referred to in paragraph 55 of the Report in the context of Article 356 of
the Constitution with the final decision on the report of the Governor
being with the President acting on the aid and advice of his Council of
Ministers. In this overall context, it was, in a sense, reiterated that: "The
Constitution does not aim at providing a parallel administration within the
G
State by allowing the Governor to go against the advice of the Council of
Ministers."
67. Since a reference was earlier made to Article 3 71-A of the
Constitution in the conkxt of the discretionary powers of the Governor,
it is necessary to mention that that Article was inserted in the Constitution
H by the Constitution (Thirteenth Amendment)Act, 1962. What is important
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 257
AND OTHERS [MADAN B. LOKUR, J.]

to notice in the said Article is that the draftsman and Parliament A
maintained the distinction between "in his discretion" and "his individual
judgment". This is clear from the use of the expression "in his discretion"
in some paragraphs of the Sixth Schedule as mentioned above and the
use of the expression "his individual judgment" occurring in Article 371-
A( 1)(b) of the Constitution. Therefore, a distinction between "in his
B
discretion" and "his individual judgment" was recognized and appreciated.
Sadly, as the submissions made before us indicate, this differentiation is
slowly losing ground as the framers of the Government of India Act,
1935 presumably foresaw and which was adverted to by Sir B.N. Rau.
68. In their concurringjudgment, Justice P. N. Bhagwati and Justice
Krishna Iyer endorsed the view (in paragraph 139 of the Report) that c
the discretionary powers of the Govenior have been expressly spelt out
in the Constitution (as noticed above) and also endorsed the extension of
'discretion' to Article 356 of the Constitution. The learned judges observed
that "limited free-wheeling" is available to the Governor in the choice of
the Chief Minister and the dismissal of the Ministry (and later in paragraph D
154 of the Report to the dissolution of the House).
69. It appears that the "limited free-wheeling" concept is based
on the discretion given to the Governor under Article 163(2) of the
Constitution, although it is not specifically discussed in the concurring
judgment.
E
70. Be that as it may, the learned judges observed that if the
Governor was held entitled to exercise his powers personally, then that
interpretation would extend to several Articles of the Constitution,
including the power to grant pardon or to remit or commute a sentence
(Article 161 ), the power to make appointments including of the Chief
Minister(Article 164), the Advocate-General (Article 165), District Judges F
(Article 233), Members of the Public Service Commission (Article 316),
the power to prorogue either House of Legislature or to dissolve the
Legislative Assembly (Article 174 ), the right to address or send messages
to the Houses of the Legislature (Article 175 and A1ticle 176), the power
to assent to Bills or withhold such assent (Article 200), the power to
G
make recommendations for demands of grants [Article 203(3)], and the
duty to cause to be laid every year the annual budget (Article 202), the
power to promulgate ordinances during recesses of the Legislature
(Article 213), the obligation to make available to the Election Commission
the requisite staff for discharging the functions conferred by Article 324( I)
on the Commission [Article 324(6)], the power to nominate a member H
258 SUPREME COURT REPORTS [2016] 6 S.C.R.

A of the Anglo-Indian Community to the Assembly in certain situations
(Article 333) and the power to 'authorize the use of Hindi in the
proceedings in the High Court [Article 348(2)]. (One could add Article
239(2) of the Constitution to this list). It was held that if the ratio of
Sardari Lal and Jayantila/ Amritlal S/zodlum v. F.N. Rana 23 was
.ll!ade applicable:
B
" ........ to every function which the various articles of the
Constitution confer on the President or the Governor, Parliamentary
democracy will become a dope and national elections a numerical
exercise in expensive futility. We will be compelled to hold that
there are two parallel authorities exercising powers of governance
c of the country, as in the dyarchy days, except that Whitehall is
substituted by Rashtrapati Bhavan and Raj Bhavan. The Cabinet
will shrink at Union and State levels in political and administrative
authority and, having solemn regard to the gamut of his powers
and responsibilities, the Head of State will be reincarnation of
D Her Majesty's Secretary of State for India. untroubled by even
the British Par! iament- a little taller in power than the American
President. Such a distortion, by interpretation, it appears to lJS,
would virtually amount to a subversion of the structure, substance
and vitality of our Republic, particularly when we rememberthat
Governors are but appointed functionaries and the President
E himself is elected on a limited indirect basis. As we have already
indicated, the overwhelming catena of authorities of this Court
have established over the decades that the cabinet form of
Government and the Parliamentary system have been adopted in
India and the contrary concept must be rejected as incredibly
F allergic to our political genius, constitutional creed and Cl!lture."
71. All the seven learned judges constituting the Bench were explicit
and unequivocal in their view that the principle of Cabinet responsibility
is firmly entrenched in our constitutional democracy and that our
Constitution does not accept any "para Ilei administration" or "dyarchy".
Afortiorari the discretion available to the Governor under Article 163
G of the Constitution is not all-pervasive but is circumscribed by the
provisions of the Constitution, with a small ventilator available, in some
given exceptional situations by or under the Constitution. In this context,
it is interesting to note that this Court did not even advert to the
comparatively recent decision rendered in Satya Pal Dang which virtually
H " ( 1964) 5 SCR 29 (5 Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 259
AND OTHERS [MADAN B. LOKUR, J.]

sanctified the vast exercise of power by the Governor. Therefore, it A
must be assumed that Satya Pal Dang should be confined to its unique
and extraordinary facts reminiscent of the happenings in the age of the
Stuarts or did not necessarily lay down the correct law given the more
than blanket powers of the Governor that that decision approved or had
nothing to do with Article 163 of the Constitution.
B
72. Pmtllpsi11f(il Rao]imo Rtme v. Governor of Goll~• was yet
another peculiar case in which the Governor dismissed the ChiefM inister
and appointed another person (Dr. Wilfred Anthony D'Souza) as the
Chief Minister of Goa in exercise of powers conferred by Article 164(1)
of the Constitution. Both decisions were challenged by way of a writ
petition in the Bombay High Court. c
73. In that case the Governor was of opinion that the Chief Minister
had lost the confidence of the Legislative Assembly. Accordingly, he
sent a communication to the Chief Minister on 28'h July, 1998 at about
2.00 p.m. requiring him to seek a vote of confidence from the Legislative
Assembly before 3.30 p.m. on the same day. In response, the Chief
D
Minister did seek a vote of confidence from the Legislative Assembly
and was successful in doing so. (There was some controversy about
this).
74. Notwithstanding the confidence expressed by the Legislative
Assembly in the Chief Minister, the Governor prorogued the Assembly
at about 8.35 p.m. on 29'h July, 1998 and appointed Dr. D'Souza as the E
Chief Minister at about I 0.00 p.m.
75. The questions before the High Court were whether the
Governor had the power to prorogue the Legislative Assembly and to
dismiss the ChiefMinister. As regards the dismissal of the Chief Minister,
it was held in paragraph 37 of the Report that the Governor was entitled
F.
to exercise his individual discretion in appointing the Chief Minister and
that this was not subject to judicial review. In coming to this conclusion,
the High Court proceeded on the basis that the Governor could withdra\Y
his pleasure and thereby require the Chief Minister to vacate his office.
The High Court referred to Ma/whir Prasad Slwrma and concluded
that if the Council of Ministers refused to vacate its office then the G
Governor could withdraw his pleasure and that withdrawal of pleasure
by the Governor was not open to judicial review.. Carrying this a little
further, the Coutt held in paragraph 46 of the Report:
"Thus, the position in law is clear that the Governor, while taking
"AIR 1999 Bombay 53 H
260 SUPREME COURT REPORTS [2016] 6 S.C.R.

A decisions in his sole discretion, enjoys immunity under Article
361 and the discretion exercised by him in the performance of
such functions is final in terms of Article 163(2). The position
insofar as the dismissal of the Chief Minister is concerned would
be the same, since when the Governor acts in such a matter he
acts in his sole discretion. In both the situations, namely the
8
appointment of the Chief Minister and the dismissal of the Chief
Minister. the Governor is the best judge of the situation and he
alone is in possession of the relevant i1iformation and material on
the basis of which he acts. The result, therefore, would be that
such actions cannot be subjected to judicial scrutiny at all."
c 76. The High Court did not address itself to the issue of prorogation
of the Legislative Assembly since in view of the above it was held that
the writ petition was not maintainable.
77. This decision too proceeds on the incorrect basis and
assumption that the Governor is the best person to know whether the
Chief Minister of a State has lost the confidence of the Legislative
D
Assembly and is, therefore, entitled to exercise vast powers regarding
withdrawal of his pleasure in dismissing the Chief Minister of a State.
To this extent, Pratapsingh Raojirao Rane does not lay down the correct
law and I agree with Justice Khehar in this regard.
78. The interpretation of Article 163(2) of the Constitution again
E came up for consideration in M.P. Special Police Establis/i111e111 v.
Slate of M.P.'; ln that case the Lokayukta had given a repo11 that there
was sufficient ground for prosecuting two Ministers for offences under
the Prevention of Corruption Act, 1988 and/or under the Indian Penal
Code, 1860. The Council of Ministers of the State of Madhya Pradesh
declined to grant sanction to prosecute, but the Governor disregarded
F
the advice of the Council of Ministers and granted sanction to prosecute.
The question that arose for consideration was whether a Governor could
act in his discretion under Article 163(2) of the Constitution and against
the aid and advice of the Council of Ministers in the matter of grant of
sanction for the prosecution of two Ministers for offences under the
G Prevention of Corruption Act, 1988 and/or under the Indian Penal Code,
1860.
79. Adding to the exceptions already noted by this Cow1 where
the Governor could act despite the advice of the Council of Ministers,
yet another exclusionary situation was carved out by the Constitution
H ';(2004) 8 sec 788 (5 Judges)
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 261
AND OTHERS [MADAN B. LOKUR, J.]

Bench - in this case, on the ground of propriety. lt was held: A
"Undoubtedly, in a matter of grant of sanction to prosecute, the
Governor is normally required to act on aid and advice of the
Council of Ministers and not in his discretion. However, an
exception may arise whilst considering grant of sanction to
prosecute a Chief Minister or a Minister where as a matter of
B
propriety the Governor may have to act in his own discretion."
80. It was observed that in such a case, if the Governor cannot
act in his discretion then there could be a complete breakdown of the
rule of law. It was observed (with respect, in an exaggerated manner)
that democracy itself would be at stake. It was said:
"If, on these facts and circumstances, the Governor cannot act in c
his own discretion there would be a complete breakdown of the
rule of law inasmuch as it would then be open for Governments to
refuse sanction in spite of overwhelming material showing that a
prima facie case is made out. If, in cases where a prima facie
case is clearly made out, sanction to prosecute high functionaries
D
is refused or withheld, democracy itself will be at stake. It would
then lead to a situation where people in power may break the law
with impunity safe in the knowledge that they will not be prosecuted
as the requisite sanction will not be granted."
81.Thc decision in the case of Pu Myllai Hlycll/10 v. State of
Mizoram'" is equally instructive on the subject of the Governor's E
discretion under Article 163(2) of the Constitution. The issue related to
the Governor's discretion in the nomination of four members of the Mara
Autonomous District Council (MADC) in terms of paragraph 2( I) read
with paragraph 20-BB of the Sixth Schedule to the Constitution. 27 It
"' (2005) 2 sec 92 (5 Judges)
27
2. Cunstitntion of District Councils and Regional Councils.- (I) There shall be
F
a District Council for each autonomous <listrict consisting of not 1norc than thirty members.
of whom not 1norc than four persons shall be nominated by the Governor and the rest shall
be elected on the basis of adult suffrage:
XXX X\'.X XXX
20-BB. Exercise of discretionary powers by the GoYcrnor in the discharge of his
functions.-The Governor. in the discharge of his functions under sub-paragraphs (2) and
(3) of paragraph I. sub-paragraphs (I) and ( 7) of paragraph 2. sub-paragraph (3) of G
paragraph 3, sub-paragraph (4) of paragraph 4, paragraph 5, sub-paragraph (I) or paragraph
6. sub-paragraph (2) of paragraph 7. sub-paragraph (3) or paragraph 9. sub-paragraph (I)
of paragraph 14. sub-paragraph (I) of paragraph 15 and sub-paragraphs (I) and (2) of
paragraph 16 of this Scheuule. shall. alter consulting the Council of Ministers. and if he
thinks it necessary. the District Council or thl.! Regional Council concerned. take such
action us he c<..msider!:. necessary in his discretion.
Paragraph 20-1313 was inserted by The Sixth Scheuulc to the Cunstitution (Amendment)
Act. 1988. H
262 SUPREME COURT REPORTS [2016] 6 S.C.R.

A was held that the Governor is entitled to act in his discretion in the matter
of nomination of four members to the MADC even though he is obliged
to consult the Council of Ministers. In this case, the Governor did consult
the Council of Ministers, but that advice was not binding on him. Merely
because the Governor consulted the Council of Ministers and acted on
the advice given does not fault the decision taken by the Governor in the
8
exercise of his discretion. It was held:
"The counsel for the appellants contended that in the case of
nomination of four members, the Governor accepted the advice
of his Council of Ministers and he did not exercise the discretionary
powers vested in him under para 20-88 of the Sixth Schedule.
c This contention was raised on the basis that the initiation for issuing
the notification dated 6-12-2001 was from the Council of Ministers
and the Governor acted upon the advice of the Council of Ministers.
We do not find any force in this contention. Under the provisions
of para 20-88, the Governor shall consult the Council of Ministers.
Merely because of the fact that the Governor made consultation
D
with the Council of Ministers for nominating four members, it
cannot be assumed that the Governor failed to exercise the
discretionary powers. The Governor could have even consulted
the District Council or the Regional Council in this regard. There
is nothing to show that the Governor did not exercise his
E discretionary powers independently. Moreover, as noted above,
Article 163(2) of the Constitution expressly prohibits challenging
the validity of the exercise of such discretionary power."
82. State of Gujarat v. R.A. Mehta 28 follows the view expressed
in Samsher Si11gfl and M.P. Special Police Establisflme11t on the
F discretionary powers of the Governor and adds a few more illustrative
exceptions to those mentioned in the above decisions. Primarily, the view
taken is that the Governor can act in his discretion ifthe advice from the
Council of Ministers is not available to him due to some extraordinary
situation. It was held:
G "Article 163(2) of the Constitution provides that it would be
permissible for the Governor to act without ministerial advice in
certain other situations, depending upon the circumstances therein,
even though they may not specifically be mentioned in the
Constitution as discretionary functions e.g. the exercise of power
H 28
(2013)3SCCI
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 263
AND OTHERS [MADAN 8. LOKUR, J.]

under Article 356( 1), as no such advice will be available from the A
Council of Ministers, who are responsible for the breakdown of
constitutional machinery, or where one Ministry has resigned, and
the other alternative Ministry cannot be formed. Moreover, clause
(2) of Article 163 provides that the Governor himself is the fii~al
authority to decide upon the issue of whether he is required by or
B
under the Constitution, to act in his discretion. The Council of
Ministers, therefore, would be rendered incompetent in the event
of there being a difference of opinion with respect to such a
question, and such a decision taken by the Governor would not be
;usticiable in any court. There may also be circumstances where
there are matters with respect to which the Constitution does not c
specifically require the Governor to act in his discretion but the
Governor, despite this, may be fully justified to act so e.g. the
Council of Ministers may advise the Governor to dissolve a House,
which may be detrimental to the interests of the nation. In such
circumstances, the Governor would be justified in refusing to accept
D
the advice rendered to him and act in his discretion. There may
even be circumstances where ministerial advice is not available
at all i.e. the decision regarding the choice of Chief Minister under·
Article 164(1) which involves choosing a Chief Minister after a
fresh election, or in the event of the death or resignation of the
ChiefMinister, or dismissal of the ChiefMinisterwho loses majority E
in the House and yet refuses to resign or agree to dissolution."
83. However, it seems to me that the Bench might be incorrect in
expanding the discretionary power to include the advice of the Council
of Ministers "which may be detrimental to the interests of the nation."
For one, it is difficult to imagine a democratically elected Council of F
Ministers giving advice that "may be detrimental to the interests of the
nation". Secondly, who is to judge ifthe advice is "detrimental to the
interests of the nation" and what are the standards for coming to this
conclusion. Thirdly, our Constitution has not given the Governor arbitrary
or imperial powers to decide what is or is not detrimental to the interests
of the nation. The elected representatives are capable of taking that G
call. Fourthly, should such a remarkable situation arise, the Governor
would be obliged to report to the President, leaving it to him to decide on
the next course of action. However, ! leave this 'expansion' as it is and
am mentioning it only by the way.
H
264 SUPREME COURT REPORTS [20 I6] 6 S.C.R.

A 84. As the years have gone by, more and more unusual if not
extraordinary situations have arisen. These situations have led, in theory,
to greater discretionary powers being conferred on the Governor through
decisions rendered by this Court and the High Courts. Jn my view, this is
really a step backward and contrary to the idea ofresponsible government
advocated in the Constituent Assembly.
B
Justice Sarkaria Commission
85. Be that as it may, August 1988 saw the rPlease of what is
commonly known as the Justice Sarkaria Commission Report on Union-
State Relations. In Chapter IV thereof, it is noted that the role of the
c Governor had emerged as one of the key issues in Union-State relations.
While dealing with the historical background, two extremely significant
observations were made in paragraphs 4.2.03 and 4.2.04 of the Report.
It was suggested quite clearly that: (i) The Congress Party which
commanded a majority in six Provincial Legislatures after the Government
of India Act, I935 came into force assumed office only after it was
D assured by the Viceroy that the Governors "wou Id not provoke a conflict
with the elected Government." The intention was pretty clear - that the
discretion or the individualjudgrnent available to the Governor under the
Government oflndia Act, I935 would be sparingly used, if at all. (ii) This
intention was carried into effoct when the India (Provisional Constitution)
E Order, 1947 was promulgated, the expressions 'in his discretion', 'acting
in his discretion' and "exercising his individual judgement' occurring in
the Government oflndia Act, I 935 were deleted making it incumbent on
the Governor to exercise his functions only on the aid and advice of his
Council of Ministers. This is what the Justice Sarkaria Commission
observed:
F
"4.2.03 In I 937, when the Government of India Act, 1935 came
into force, the Congress Party commanded a majority in six
provincial legislatures. They foresaw certain difficulties in
functioning under the new system which expected Ministers to
accept, without demur, the censure implied, if the Governor
G exercised his individual judgement for the discharge of his special
responsibilities. The Congress Party agreed to assume office in
these Provinces only after it received an assurance from the
Viceroy that the Governors would not provoke a conflict with the
elected Government.
H 4.2.04 Independence inevitably brought about a change in the role
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 265
AND OTHERS [MADAN B. LOKUR, J.]

of the Governor. Until the Constitution came into force, the A
provisions of the Government of India Act, 1935 as adapted by
the India (Provisional Constitution) Order, 1947 were applicable.
This Order omitted the expressions 'in his discretion', 'acting in
his discretion' and 'exercising his individual judgement', wherever
they occurred in the Act. Whereas, earlier, certain functions were
B
to be exercised by the Governor either in his discretion or in his
individual judgement, the Adaptation Order made it incumbent on
the Governor to exercise these as well as all other functions only
on the advice of his Council of Ministers."
86. The Justice Sarkaria Commission looked at Article 163( I) of
the Constitution in two parts, nam~ly, the Governor exercising his
c
discretion when required by the Constitution and when required under
the Constitution. The exercise of discretion conferred by the
Constitution would relate to an express provision of the Constitution
(such as those relating to the Tribal Areas of Assan1) or by necessary
implication; while the latter expression would include the exercise of D
discretion from rules and orders made under the Constitution. Given
this interpretation, according to the Justice Sarkaria Commission, "The
scope of discretionary powers has to be strictly construed, effectively
dispelling the apprehension, if any, that the area for the exercise of
discretion covers all or any of the functions to be exercised by the
Governor under the Constitution. In other words, Article 163 does
E
not give the Governor a general discretionary power to act against
or without the advice of his Council of Ministers."c 9 (Emphasis
given by me).
87. The Justice Sarkaria Commission studied the Constitution and
placed the functions of the Governor in four categories: F
(i) The Governor acting in his discretion;
(ii) The Governor acting in his individual judgment;
/ .
(iii) The/Governor acting in his discretion independently of the
Council of Ministers.
G
(iv) The.Governor acting in his discretion under the Constitution.
88. The first category offunctions consists of the Governor acting
in his discretion only in respect of the Tribal Areas of Assam as per the
Sixth Schedule of the Constitution. Subsequently, as the Constitution was

"Parngraph 4.3.08 H
266 SUPREME COURT REPORTS [2016] 6 S.C.R.

A amended, this category expanded to include Article 371-A (1) (d) and
(2)(f) [relating to Nagaland], Article 371-F (g) [relating to Sikkim],Article
371-H (a) [relating to Arunachal Pradesh]. To this may also be added
paragraph 20-BB of the Sixth Schedule, as discussed in Pu Myl/ai.
89. The second category of functions consists of the Governor
B acting in his individual judgment. This was not provided for in the
Constitution as originally enacted but was introduced by way of an
amendment in Article 371-A (1 )(b) [pertaining to Nagaland] and Article
371-H (a) [pertainingtoArunachal Pradesh].
90. With regard to the third category of functions, the Justice
c Sarkaria Commission gave five examples of areas where the Governor
exercises his discretion independently of the Council of Ministers- all of
them by necessary implication:
"(a) Governor has necessarily to act in his discretion where the
advice of his Council of Ministers is not available, e.g. in the
appointment of a Chief Minister soon after an election, or where
D
the Council of Ministers has resigned or where it has been dismissed
[,:\rticle 164(1)1.
(b)A Governor may have to act against the advice of the Council
of Ministers, e.g. dismissal ofa Ministry following its refusal to
resign on being defeated in the Legislative Assembly on a vote of
E no-confidence [Article 164(1) &(2)]. • ·
(c)A Governor may require that any matter decided by a Minister
may be considered by the Council of Ministers (Article 167).
(d) A Governor may have to make a report to the President under
Article 356 that a situation has arisen in which the government of
F the State cannot be carried on in accordance with the provisions
of the Constitution.
Obviously, in such a situation he may have to act against the aid
and advice of the Council of Ministers as the situation may be due
to the various acts of omission or commission on the part of the
G Council of Ministers (Article 356).
( e) A Governor may have to exercise his discretion in reserving a
Bill for the consideration of the President (A1iicle 200)."
To the above example may be added the view of this Court expressed in
M.P. Special Police Estab/islime11t.
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 267
AND OTHERS [MADAN B. LOKUR, J.]

91. While explaining the examples given, the Justice Sarkaria A
Commission also added that the Governor may exercise his discretion
independently of the Council of Ministers in dissolving the Legislative
Assembly, but there has been no consistent practice in this regard. It
was stated as follows:
"Various Governors have adopted different approaches in similar B
situations in regard to dissolution of the Legislative Assembly. The
advice of a Chief Minister, enjoying majority support in the
Assembly, is normally binding on the Governor. However, where
the Chief Minister had lost such support, some Governors refused
to dissolve the Legislative Assembly on his advice, while others in
similar situations, accepted his advice, and dissolved the Assembly. c
The Assembly was dissolved in Kerala ( 1970) and in Punjab ( 1971)
on the advice of the ChiefMinisterwhose claim to majority support
was doubtful. However, in more or less similar circumstances in
Punjab (1967), Uttar Pradesh (1968), Madhya Pradesh (1969)
·and Orissa (1971) the Legislative Assembly was not dissolved. D
Attempts were made to instal alternative Ministries." 30
92. In specific regard to summoning the Legislative Assembly (an
issue directly concerning us in the present case), the Justice Sarkaria
Commission noted that differing views were expressed by the States for
·different reasons. These have been mentioned in paragraphs 4.11.16 to E
4.11.20 of the Report. 31 The sum and substance of the discussion is that
the unilateral power to summon the Legislative Assembly may be
exercised by the Governor only in three situations:
(i) When the Chief Minister designedly fails to advise the
summoning of the Assembly within six months of its last F
sitting, or advises its summoning for a date falling beyond
this period.
(ii) When the Chief Minister, unless he is the leader ofa party
that has an absolute majority in the Legislative Assembly,
does not seek a vote of confidence within 30 days of taking G
over.
(iii) . When it appears to the Governor that the incumbent Ministry
311
Paragraph 4.4.03
31
The Yiew expressed regarding proroguing and dissolving the Assembly is not referred
to since that issue docs not arise in the present case. H
268 SUPREME COURT REPORTS [2016] 6 S.C.R.

A no longer enjoys the confidence of the Assembly, he may
ask the Chief Minister to test his majority support on the
floor of the House within a reasonable time. The reasonable
time could be within 30 days (unless there is some urgency
such as passing the annual budget) but shou Id not exceed
60 days.
B
It may be mentioned en passant that none of these situations arise in
the present case.
93. With regard to the fourth category of functions, the Justice
Sarkaria Commission gave the examples of Orders passed by the
c President under Article 3 71 of the Constitution. One such Order issued
under Article 371 (I) of the Constitution is the Pwtjab Regional Committees
Order, 1957. 3 ~ Paragraph I 0 of this Order provided that "The Governor
shall have special responsibility for securing the proper functioning of
regional committees in accordance with the provisions of this Order."

D 94. Similarly, paragraph I 0 of the Andhra Pradesh Regional
Committee Order, 1958 33 issued under A11icle 371 ( 1) of the Constitution
provided that "The Governor shall have special responsibility for securing
the proper functioning of the regional committee in accordance with the
provisions of this Order".

E 95. With regard to the State of Gujarat, the President issued the
State of Gujarat (Special Responsibility of Governor for Kutch) Order,
1977 dated 28' 11 February, 1977. This was in exercise of powers conferred
by Article 371 (2) of the Constitution. Paragraph 2 if the said Order
provided as follows:
"2. Special Responsibility of Governor-( 1) TheGovernorofGujarat
F
shall have special responsibility for the establishment of a
development board for Kutch and for the other matters referred
to in clause (2) of article 371 of the Constitution in respect of that
area.
(2) The Governor shall, in the discharge of his special responsibility
G under this Order, act in his discretion."
96. For the State of Manipur, the Manipur Legislative Assembly
Hill (Areas Committee) Order, 1972 was issued on 28'h June, 1972 by
the President in exercise of powers conferred by Article 3 71-C of the
32
SRO 3524 dated 4'" NO\ ember. 1957
H "SRO 446-A dated \" February. 1958
NABAM REBlA, AND BAMANG FELIX v. DEPUTY SPEAKER 269
AND OTHERS [MADAN B. LOKUR, J.]

Constitution. Paragraph 9 of this Order provided for the special A
responsibility of the Governor: "The Governor shall have special
responsibility for securing the proper functioning of the Hill Areas
Committee in accordance with the provisions of this Order and shall, in
the discharge of his special responsibility, act in his discretion."
97. Finally, in exercise of powers conferred by Clause (2) ofArticle B
3 7 l of the Constitution, the President issued the State of Maharashtra
(Special Responsibility of Governor for Vidarbha, Marathwada and the
rest of Maharashtra) Order, 1994 which came into effect on 1" May,
1994. This Order confers large discretionary powers on the Governor in
relation to the functioning of the Development Boards, including allocation
offunds.
c
98. At all times, the Governor may exercise this discretion only to
ensure that the system ofresponsible government in the State functions
in accordance with the norms envisaged in the Constitution, and as
postulated by the Constituent Assembly and Dr. Ambedkar.
D
99. There is absolutely no reason to take a view different from
that expressed by the Justice Sarkaria Commission though coupled with
the view expressed by this Court in the few decisions mentioned above.
Justice Punchhi Commission
100. In March 2000, Justice Punch hi submitted a Report on E
Centre-State Relations. The broad mandate of the Commission was ''to
review the existing arrangements between the Union and States as per
the Constitution oflndia in regard to powers, functions and responsibilities
in all spheres including legislative relations, administrative relations, role
of Governors, emergency provisions, financial relations, economic and
F
social planning, Panchayati Raj institutions, sharing of resources, including
inter-state river water and recommend such changes as may be
appropriate keeping in view the practical difficulties".
101. With reference to the discretionary role of the Governor,
broadly speaking, the following situations may be culled out from the
G
Justice Punchhi Commission Repo11(paragraph4.5 thereof):
(i) To give assent or withhold or refer a Bill [except a Money
Bill] for Presidential assent under A11icle 200;
(ii) The appointment of the Chief Minister under Article 164;
H
270 SUPREME COURT REPORTS [2016] 6 S.C.R.

A (iii) Dismissal of a Government that has lost the confidence of
the Legislative Assembly but refuses to quit since the.Chief
Minister holds office during the pleasure of the Governor;
(iv) If the Chief Minister neglects or refuses to summon the
Assembly for holding a "Floor Test", the Governor should
B summon the Assembly for the purpose.
(v) Dissolution and prorogation of the House under A1ticle 174;
(vi) Governor's report under Article 356;
(vii) Governor's responsibility for certain regions of the country
C under Articles 3 71-A, 371-C and 371-H of the Constitution.
(viii) Where the bias is inherent and/or manifest in the advice of
the Council of Ministers [as in the case of Madhya Pradesh
Special Police Establishment].
102. The Justice Punchhi Commission did not disagree with the
D Justice Sarkaria Commission on any issue relating to the functions and
duties of the Governor. It must therefore be taken that the functions,
duties and powers of the Governor by or under the Constitution are
"cabined, cribbed, confined". However, if"discretion" is given a broad
meaning as desired by the respondents and is given greater weightage
than "his individual judgment" then there would be "saucy doubts and
E
fears" 3• of the arbitrary exercise of discretion by the Governor as has
happened in the present case, and other cases.
103. From the submissions made by learned counsel for the
responsents, it would seem that the functions of the Governor in his
relations with the Executive arc completely hedged in but in his relations
F
with the Legislature and the elected representatives, his discretion is
virtually unlimited and not subject to judicial review as well. Surely, this
is not what the Constitution framers had in mind nor do the decisions of
this Cou1t lead to such an intention or interpretation.
l
I 04. Rather than provide so-called untrammeled power and
G authority to the Governor, the Constitution makers gave him an escape
route in the event the Legislature is recalcitrant. This is by way ofresort
to Article 356 of the Constitution through which the Governor can make
a report to the President in the event there is a failure of constitutional
machinery in the State. This escape route is available in a case where
H " Macbeth. Act II I Scene IV
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 271
AND OTHERS [MADAN B. LOKUR, J.]

the Governor dismisses a Government but the Government refuses to A
recognize the dismissal order.
I 05. Additionally, to ensure that the Governor is not unaccountable
in his relations with the Legislature, the Constitution provides for the
Legislature to frame its rules of procedure under Article 208 of the
Constitution. The Legislature in Arunachal Pradesh has framed such B
rules and these are considered below.
Rules of Business of the Legislative Assembly
I 06. First and foremost, it is important to note that the rules of
procedure framed by the Legislative Assembly for regulating its procedure
and the conduct of its business under Article 208 of the Constitution do C
not need anybody's approval, including that of the Governor of the State. 3;
107. The Rules of Procedure and Conduct of Business in
Arunachal Pradesh Legislative Assembly (for short "the Rules") framed
by the Legislative Assembly of Arunachal Pradesh in exercise of powers
conferred by Article 208 of the Constitution carry forward the intention D
of the Constituent Assembly as well as the decisions of this Court to the
effect that the Governor is a constitutional or formal head not only of the
Executive but, in some respects, also of the Legislature. The Rules give
the Governor of Arunachal Pradesh limited discretionary powers, but
more particularly so in the matter of summoning the Legislative Assembly. E
I 08. Rule 3 of the Rules provides that for summoning the Assembly
under Article 174 of the Constitution, the Chief Minister shall, in
consultation with the Speaker, fix the date of commencement and duration
of the session of the Assembly and advise the Governor accordingly.
Rule 3A of the Rules provides that on receipt of such advice, the Assembly
F
" 208. Rules of procedure - (I) A House of the Legislature of a State may make rules
for regulating, subject to the provisions of this Constitution, its procedure and the
conduct of its business.
(2) Until rules are made under clause (I), the rules of procedure and standing orders in
force immediately before the commcnccmc11t of this Constitution with respect to tl1e
Legislature for the corresponding Province shall have effect in relation to the Legislature G
of the Slate subject to such modifications and adaptations as may be mack therein by
the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as
the case may be.
(3) In a State having a Legislative Council the Governor, afler consultation with the
Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may
make rules as to the procedure with respect to communications bel\\ ecn the two
Houses. H
272 SUPREME COURT REPORTS [2016] 6 S.C.R.

A is summoned by the Governor and the Secretary of the Assembly then
issues summons to each member of the Assembly specifying the date
and place for the session at least 30 days before the commencement of
the session. The Assembly may also be summoned on a short notice in
terms of the proviso to Rule 3A of the Rules, but we are not concerned
with that. Rule 3 and Rule 3A of the Rules read as follows:-
B
"3. The Chief Minister shall, in consultation with the Speaker, fix
the date of commencement and the duration of the session, advise
the Governor for summoning the Assembly under Atiicle 174 of
the Constitution.
3A. On issue of such summons by the Governor, the Secretary
c shall issue a summon to each member specifying the date and
place for the session of the House at least thitiy days before the
date of commencement of the Session:
Provided that when a Session is called at shoti notice or emergently,
the summons may not be issued to each member separately but
D an announcement of the date and place of the Session shall be
published in the Gazette and made on the All-India Radio and the
members shall also be informed by wireless messages or
telegrams."
I 09. It is clear from the above that the Governor can summon the
E Assembly only if the Chief Minister (in consultation with the Speaker)
so.advises him. There is no exception to this. However, Article 174 of
the Constitution would be violated ifthe ChiefMinister does not so advise
the Governor to summon the Assembly for a period of six months, or if
the Governor does not summon the Assembly despite the advice of the
Chief Minister. As mentioned by Pandit Jawaharlal Nehru when the
F
First Amendment to the Constitution was discussed in Parliament, either
the Chief Minister or the Governor (as the case may be) would have to
bear the consequences of violating the Constitution.
110. In matters pertaining to the Assembly, the Governor of
Arunachal Pradesh has been given an additional 'discretionary power'.
G This is with regard to the election of the Speaker of the Assembly. Rule
7( I) of the Rules provides that when a new Assembly is constituted or
there is a vacancy in the office of the Speaker and the election of the
Speaker is necessary, the Governor shall fix a date for holding the election.
To this extent the Governor has a role to play in the Assembly in his
H capacity as a constituent of the Legislature, as postulated by Article 168
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 273
AND OTHERS [MADAN B. LOKUR, J.]

of the Constitution. Rule 7( I) of the Rules is relevant for this purpose A
and it reads as follows:
"7( I) When at the beginning of the new Assembly or owing to a
vacancy in the office of the Speaker, the election of a Speaker is
necessary, the Governor shall fix a date for the holding of the
election, and the Secretary shall send to every member notice of B
the date so fixed."
111. The Governor has yet another discretionary duty to perform
which is when the office of the Speaker as well as the Deputy Speaker
is vacant, even when the Assembly is not a new Assembly. In that
event the Governor has the discretionary duty to appoint a member of c
the Assembly as a Speaker. This is provided for in Article 180( I) of the
Constitution as well as Rule SB of the Rules which reads as follows:
"8B. While the Offices of both the Speaker and the Deputy
Speaker are vacant, the duties of the Office of the Speaker shall
be performed by such member of the Assembly as the Governor D
may appoint for the purpose."
Over the years a convention has developed in most Legislatures in respect
of filling up such vacancies and the 'discretion' of the Governor has
been limited thereby.
112. This may be contrasted with Article 180(2) of the E
Constitution which provides that when the Speaker and the Deputy
Speaker are both absent (not because of any vacancy) then the Legislative
Assembly and not the Governor shall determine, by rules or otherwise,
the person who shall act as the Speaker.
113. Article 200 of the Constitution postulates that the Governor F
may (in exercise of his discretion) withhold assent to a Bill passed by the
Legislature. This too is the subject matter of the Rules and Rule 82
thereof makes a provision in this regard which reads as follows:
"82. The orders of the President or the Governor granting or
withholding the sanction or recommendation to an amendment to G
a Bill shall be communicated to the Secretaiy by the Minister
concerned in writing."
114. Of course, the Governor cannot withhold assent to a Bill
indefinitely but must return it to the Assembly with a message and this
could include his recommendation for amendments to the Bill. This is H
274 SUPREME COURT REPORTS [2016] 6 S.C.R.

A the subject matter of Rule 102 and Rule I 03 of the Rules which read as
follows:
"102 ( 1) When a Bii l passed by the Assembly is returned to the
Assembly by the Governor with a message requesting that the
Assembly do reconsider the Bill or any specified provisions thereof
B or any such amendments as are recommended in his message,
the Speaker shall read the message of the Governor in the
Assembly if in session, or ifthe Assembly is not in session, direct
that it may be circulated for the information of the members.
(2) The Bill as passed by the Assembly and returned by the
Governor for reconsideration sh al I thereafter be laid on the Table.
c
103. At any time after the Bill has been so laid on the Table, any
Minister in the case of a Government Bill, or, in any other case,
any member may give notice of his intention to move that the
amendments recommended by the Governor be taken into
consideration."
D
115. It will be seen from the above that the discretion given to the
Governor in respect of his relations with the Legislative Assembly is not
only limited and circumscribed by the Constitution but also by the Rules
framed by the Legislative Assembly under Article 208 of the Constitution.
So much so that even the procedure for exchange of communications
E between the Governor and the Assembly is regulated. The Governor
shall transmit his messages to the'Assembly through the Speaker in writing
signed by him or ifhe is absent from the place of meeting of the Assembly,
it shall be conveyed to the Speaker through the leader of the House or
through such person as the leader may delegate. This is provided in
Rule 203 which reads as follows:
F
"203 (I) Communications from the Governor to the Assembly
shall be made to the Speaker by written message signed by the
Governor or if the Governor is absent from the place of meeting
of the Assembly, his message shall be conveyed to the Speaker
through the Leader of the House or through such person as the
G Leader may delegate.
(2) Communication from the Assembly to the Governor shall be
made:-
(i) by formal address after motion made and carried in the
Assembly;
H (ii) through the Speaker."
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 275
AND OTHERS [MADAN B. LOKUR, J.]

There can be no doubt that the Governor would need to respect the A
Rules at least in his relations with the Legislature and cannot override
their terms.
Arunachal Pradesh Rules of Executive Business
116. In exercise of powers conferred by Clause (2) and Clause
(3) ofArticle 166 of the Constitution, the Governor of Arunachal Pradesh B
has framed the Arunachal Pradesh Rules of Executive Business, 1987.
117. In terms of Rule 8, all cases referred to inthe Schedule are
mandated to be brought before the Cabinet in accordance with the
provisions contained in Part II thereof. Rule 8 reads as follows:
"8. Subject to the orders of the Chief Minister under Rule 14, all
c
cases referred to in the Schedule to these rules shall be brought
before the Cabinet in accordance with the provisions of the rules
contained in Part-II."
118. As will be noticed from the above, Rule 8 is subject to the
orders of the Chief Minister under Rule 14 which is in Part II. In this D
regard, as per Rule 14, the Chief Minister is entitled to refer any case
mentioned in the Schedul.e for consideration at a meeting of the Cabinet.
Rule 14 reads as follows:
"14. All cases referred to as in the schedule shall, after
consideration by the Minister be sent to the Secretary with a view E
to obtaining orders of the Chief Minister for circulation of the
case under Rule 16 or for bringing it for consideration at a meeting
of the Cabinet."
119. Rule 33 gives a list of classes of cases required to be placed
before the Governor before the issuance of orders, with the approval of
F
the concerned Minister and the Chief Minister. This includes, in Rule
33(i) the Governor's address and message to the Legislative Assembly
and in Rule 33(p) the summoning, prorogation or dissolution of the State
Assembly. In other words, before summoning the Legislative Assembly,
the case has to be considered by the Chief Minister and then placed
before the Governor of Arunachal Pradesh for issuance of appropriate G
orders. This is fully in consonance with the Rules of Procedure and
Conduct of Business in Arunachal Pradesh Legislative Assembly framed
under Article 208 of the Constitution.
120. The Schedule to the Arunachal Pradesh Rules of Executive
Business provides in item no. 4 (with reference to Rule 8 and Rule 14) H
276 SUPREME COURT REPORTS [2016] 6 S.C.R.

A for proposals to summon, prorogue or dissolve the Legislature of the
State.
Conclusions on the Rules of Business
121. It is clear from the above, that though summoning the
Legislative Assembly might be an executive function of the Governor,
B that function can be exercised by him only after such a proposal is seen
by the Chief Minister and sent to him. Reading this with the Rules of
Procedure and Conduct of Business in Arunachal Pradesh Legislative
Assembly, the Chief Minister can make a proposa! '":he Governor for
summoning the Legislative Assembly only in co11sultafa'n with the Speaker
c of the Legislative Assembly who is, in a sense, the Master of the House.
In other words, the Governor has no independent discretion or authority
to summon the Legislative Assembly, in terms of the Rules of Procedure
and Conduct of Business in Arunachal Pradesh Legislative Assembly
framed under Article 208 of the Constitution or the Arunachal Pradesh
Rules of Executive Business, 1987 framed under Article 166 of the
D Constitution to summon the Legislative Assembly in his discretion.
122. As already mentioned above, in case the Chief Minister fails
in his duty to put forward a proposal before the Governor for summoning
the Legislative Assembly or ifthe Governor does not accept the proposal
of the Chief Minister of Arunachal Pradesh for summoning the
E Legislative Assembly, necessary consequences will follow as mentioned
in the debates in Parliament when the first amendment to the Constitution
was considered.
Article 371-H of the Constitution
123. Apart from the views of the Constituent Assembly, the
F
provisions of the Constitution, decisions of this Com1 and the views of
eminent jurists on the functions, duties and powers of the Governor, the
Constitution has a special provision with respect to Arunachal Pradesh.
Article 371-H of the Constitution provides for the Governor exercising
"his individual judgment" in the discharge of his functions relating to law
G and order in Arunachal Pradesh. Specifically, therefore, the exercise of
individual judgment by the Governor of Arunachal Pradesh is permitted
by the Constitution, but is limited to issues oflaw and order only. Article
371-H of the Constitution reads as follows:
"371-H. Special provision with respect to the State of
H Arunachal Pradesh.-Notwithstanding anything in this
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 277
AND OTHERS [MADAN B. LOKUR, J.]

Constitution,- A
(a) the Governor of Arunachal Pradesh shall have special
responsibility with respect to law and order in the State of
Arunachal Pradesh and in the discharge of his functions in relation
thereto, the Governor shall, after consulting the Council of
Ministers, exercise his individual judgment as to the action to be B
taken:
Provided that if any question arises whether any matter is or is
not a matter as respects which the Governor is under this clause
required to act in the exercise of his individual judgment, the decision
of the Governor in his discretion shall be final, and the validity of
anything done by the Governor shall not be called in question on
c
the ground that he ought or ought not to have acted in the exercise
ofhis individual judgment:
. Provided further that ifthe President on receipt of a report from
the Governor or otherwise is satisfied that it is no longer necessary
for the Governor to have special responsibility with respect to law D
and order in the State of Arunachal Pradesh, he may by order
direct that the Governor shall cease to have such responsibility
with effect from such date as may be specified in the order;
(b) the Legislative Assembly of the State of Arunachal Pradesh
shall consist of not less than thirty members." E
I24. It is quite clear from the above discussion and particularly from
the provisions of the Constitution that the concept of"in his discretion"
and "his individual judgment" is very much alive and the distinction
continues to be real. Once this is appreciated the extent and scope of
Article I 63 of the Constitution becomes obvious.
F
Conclusions
125. Under Article 163(1) of the Constitution, the Governor is
bound by the advice of his Council of Ministers. There are only three
exceptions ["except in so far as"] to this: ( i) The Governor may, in the
exercise of his functions, act in his discretion as conferred by the G
Constitution; (ii) The Governor may, in the exercise of his functions,
act in his discretion as conferred under the Constitution; and (iii) The
Governor may, in the exercise of his functions, act in his individual
judgment in instances specified by the Constitution.
126. The development of constitutional law in India and some H
278 SUPREME COURT REPORTS [2016] 6 S.C.R.

A rather peculiar and extraordinary situations have led to the evolution of a
distinct category offunctions, in addition to those postlllated or imagined
by the Constitution and identified above. These are functions in which
the Governor acts by the Constitution and of constitutional necessity in
view of the peculiar and extFaordinary situation SUCh as that which arose
in M.P. Special Police Establishment and as arise in situations relating
B
to Article 356 of the Constitution or in choosing a person to be the leader
of the Legislative Assembly and the Chief Minister of the State by proving
his majority in the Legislative Assembly.
127. However, these limitations do not preclude the Legislative
Assembly from framing its Rules of Legislative Business under Article
c 208 of the Constitution with reference to the functions of the Governor,
nor do they preclude the Governor from framing Rules of Executive
Business under Article 166 of the Constitution for the smooth functionfng
of the government, as long as the Rules are framed in consonance with
the constitutional requirements and within constitutional boundaries.
D Understanding the facts .....
128. The facts presented to us show that on 3rd November, 2015
the Governor issued an Order whereby, in exercise of powers conferred
on him by Clause (1) of Article 174 of the Constitution, the Sixth Session
of the Legislative Assembly was summoned to meet at 10.00 a.m. on
E l 4'h January, 2016 to l 81h January, 2016 in the Legislative Assembly
Chamber at Naharlagun. The Order was in accordance with the
constitutional provision (Article 174) for summoning the Assembly and
in accordance with the Rules of Procedure and Conduct of Business in
Ar.unachal Pradesh Legislative Assembly framed in exercise of powers
F granted by Article 208 of the Constitution. In other words, the Order
was in consultation with the Speaker of the Assembly and the Chief
Minister of Arunachal Pradesh.
129. Thereafter, on l 9'hNovember, 2015 notice of a resolution for
the removal of the Speaker was received in the Secretariat of the
G Legislative Assembly. This resolution was in terms of Article 179 of the
Constitution. A copy of this resolution was also independently made
available to the Governor by the signatories to the resolution along with
a request to advance the date of the session of the Assembly to consider
and vote on the resolution for the removal of the Speaker.
130. By an Order issued on 91h December, 2015 the Order of 3rd
H
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 279
AND OTHERS [MADAN B. LOKUR, J.]

November, 2015 summoning the Assembly was modified by the Governor A
on the ground, i/1/er a/ia, of his constitutional obi igation "to ensure that
the resolution for removal of Speaker is expeditiously placed before the
Legislative Assembly." The modification Order modified the date of 141h
January, 2016 to read 16'" December, 2015 and the date of I 81h January,
2016 to 1S'h December, 2015.
B
131. The modification Order also recorded that expeditious
consideration was necessary in view of (i) past precedents in the Lok
Sabha (none of the learned counsel could enlighten us on any such
precedent); (ii) paragraph 2 of Rule 151 of the Rules of Procedure and
Conduct of Business in Arunachal Pradesh Legislative Assembly
required expedition;' 6 (iii) utmost immediacy for clearing the cloud cast c
on the continuance of the incumbent Speaker; (iv) the personal satisfaction
of the Governor that the time gap till the next session of the Assembly
was long and unreasonable and "may cause damage to the goals and
ideals of provisions in the Constitution oflndia and the Rules of Procedure
of the House concerning speedy dispos_al of such resolutions" and; (v) in D
advancing the date of the sixth session of the Assembly, he "may not be
bound by the advice of the Council of Ministers, si11ce the subject matter
of the notice for removal of the Speaker is not a matter falling under the
executive jurisdiction of the Chief Minister, Arunachal Pradesh nor such
a subject matter finds a mention in the Rules of Executive Business of
the Government of Arunachal Pradesh framed under Article 166 of the E
Constitution oflndia ... " The relevant extract of the modification Order
reads as follows:
" 151. Any resolution to remove the Speaker or the Deputy Speaker from otiice. of which
at least fourteen days notice as required under Article 179 of the Constitution has been
given shall be read to the Assembly by the person presiding who shall then request the
members who are in favour of leave being granted to move the Resolution to rise in their F
places. and if not less than cine fifth of the total numbers of member of the House rise
accordingly, the person presiding shall allow the Resolution to be moved. If less than one-
fifth of the total numbers of member of the House rise, the person presiding shall inform
the member who may have given the notice. that he has not the leave of the Assembly to
move it.
If notice of a Resolution against the Speaker or the Deputy Speaker is tabled, the House
shall not be adjourned till the provisions of these Rules are complied with and the motion G
on no confidence is disposed of finally.
The charges in the Resolution moved by a mover.against Speaker or Deputy Speaker
should be substantially and precisely expressed.
The nature of the charges should be within the conduct of Speaker or Deputy Speaker in
the House for the inability to conduct the business in the House or misappropriation of
· Assembly property or finance.
The Resolution duly signed by the mover should be handed over to Secretary, Legislative
Assembly for s_crutiny. H
280 SUPREME COURT REPORTS [2016] 6 S.C.R.

A "WHEREAS any such notice of resolution in relation to an Officer
of the Legislative Assembly (Speaker or Deputy Speaker) needs
to be expeditiously considered by the Legislative Assembly in view
of (i) past precedents in the Lok Sabha and (ii) the seriousness
and urgency accorded to such resolutions in paragraph 2 of Rule
15 l of the Rules of Procedure and Conduct of Business in the
8
Arunachal Pradesh Legislative Assembly and (iii) the utmost
immediacy with which the cloud cast by the notice of resolution
over the continuance of the incumbent in the office of the Speaker
has to be cleared:
WHEREAS I am personally satisfied that the time gap between
c the date of compliance of the notice with the notice period
prescribed in the first proviso to article 179 (c) of the Constitution
of India and the date of the intended first sitting of the ensuing
session, as computed in the aforesaid manner, is long and
unreasonable and may cause damage to the goals and ideals of
D provisions in the Constitution oflndiaand the Rules of Procedure
of the House concerning speedy disposal of such resolutions:
WHEREAS I am further satisfied that, for any exercise of
advancing the date of the sixth session under clause (I) of article
174 of the Constitution of India to a date earlier than the date
mentioned in the summons dated 3'd November, 2015 for facilitating
E
the House to expeditiously consider resolutions for removal of
Speaker, I may not be bound by the advice of the Council of
Ministers, since the subject matter of the notice for removal of
the Speaker is not a matter falling under the executive jurisdiction
of the Chief Minister, Arunachal Pradesh nor such a subject matter
F finds a mention in the Rules of Executive Business of the
Government of Arunachal Pradesh framed under article 166 of
the Constitution of India thereby restricting the role of the Chief
Minister in advising me in exercise of my powers under article
I 74( I) of the Constitution of India only to matters for which the
Chief Minister, under the Constitution oflndia, is responsible:"
G
132. Effectively, the Governor not only modified the dates of the
session of the Assembly but also cancelled or revoked the dates of the
session of the Assembly earlier decided upon in consultation with the
Speaker of the Assembly and the Chief Minister of Arunachal Pradesh.
133. On 14'h December, 2015 that is two days before the Assembly
H
NABAM REBJA, AND BAMANG FELIX v. DEPUTY SPEAKER 281 .
AND OTHERS [MADAN B. LOKUR, J.]

was to meet, the Council of Ministers of Arunachal Pradesh met and A
considered Agenda Item No. 1 being "Discussion on the message dated
91h December, 2015 of the Governor of Arunachal Pradesh for pre-
ponement of the Assembly session from 14 1" January, 2016 to 16'"
December, 2015". The Minutes of the Cabinet reco.rd as follows:
"The Cabinet has discussed the opinion rendered by the Learned B
Advocate General dated 12.12.2015 on the constitutionality of
the order and message of HE, the Governor. After careful
examination, the Cabinet has resolved as under:
The State Cabi11et at its meeting held on 141" December, 2015 at
I 000 hrs in CMs conference hall again discussed in detail the
Order and the Message dated 09.12.2015 of His Excellency the
c
Governor of Arunachal Pradesh.
Cabinet has received the opinion of the Ld. Advocate General
dated 12.12.2015 and other legal experts on the said Order and
Message. The Cabinet has perused the said opinion and is in
complete agreement with views of the Ld. Advocate General. D
The said Order dated 09.12.2015 issued by His Excellency the
Governor of Arunachal Pradesh is in contradiction to Article 174
read with Article 163 of the Constitution of India and Rule 3 and
3A of the Rules of Procedure and Conduct of Business of the
Arunachal Pradesh Legislative Assembly. Similarly, the Message E
is contrary to Article 175 of the Constitution read with Rule 245
of the Rules. Moreover, the Hon'ble High Court ofGauhati has
fixed the hearing of the case of resignation of2 MLAs from the
Assembly on I 611t December, 2015.
Therefore, the Cabinet resolves and advises, His Excellency, the F
Governor of Arunachal Pradesh to recall and cancel the Order
and Message dated 911t December, 2015 and allow the Session to
be convened on 14 11t January, 2016 as already ordered and
scheduled.
The Cabinet also resolves to endorse a copy of this resolution and
G
legal advice of the Ld. Advocate General to the Hon'ble Speaker."
134. As per the list of dates and events supplied to us, the Speaker
urged the Governor by a communication of I 4 11t December, 2015 ·'to
uphold and preserve the sanctity of the constitutional framework and let
the House function as per its original schedule without any undue
1-1
282 SUPREME COURT REPORTS [2016] 6 S.C.R.

A interference." This communication was not acknowledged nor replied
to. It has also not been placed before us .
..... and the applicable law
13 5. It does appear to me. on facts, that the Governor acted
unilaterally in issuing the modification Order and did not consult either
B the Chief Minister or the Speaker. In any event, no such consultation
was shown to us. Under these circumstances, the legitimate question
that arises is whether the Governor could modify ~h 0 notified dates of
the session of the Assembly and simultaneously cancel and revoke the
dates earlier fixed by an appropriate Order in exercise of his powers
c under Article 174 of the Constitution and (as suggested by learned counsel
appearing on his behalf and the movers of the resolution) in the exercise
of his discretion under Article 163 of the Constitution? What further
complicates the matter is that the Governor ignored the resolution of the
Cabinet of 141" December. 20 15 even assuming the communication of
the Speaker did not reach him.
D
136. Our Constitution expects all constitutional authorities to act
in harmony and there must be comity_ between them to further the
constitutional vision of democracy in the larger interests of the nation. In
other words. conflicts between them should be completely.avoided but if
there arc any differences ofopinion or perception. they should be narrowed ·
E to the maximum extent possible and ironed out through dialogue and
discus5ion. It must he appreciated tlrnt no one is above the law and
equally. no one is not answerable to the law and the debate on the First
Amendment to the Constitution clearly indicates so.
137 As i> evident from our constitutional history. there are three
f areas in which a Governor might function:
a) Area' in 11 hich he can act only on the aid and advice of the
Council of Ministers This is in all areas of the executi\e
function> of the State Cn11'crnmcnt [/\rt ii: le 166].
b) Areas in which he can act in his discretion by or under the
G Constitution and in which he does not need to take the advice
of the Council of Ministers [A11icle 163 - "'except in so far
as he is by or under this Constitution required to exercise
his functions or any of them in his discretion."] or, areas in
which he might take the advice of the Council of Ministers
H but is not hound by it enabling him to act in his individual
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 283
AND OTHERS [MADAN 8. LOKUR, J.]

judgment by or under the Constitution. A
c) Areas that have no concern with the Constitution. For
example, where he is acting ea no mine. We are not
concerned with this area at all.
For our purposes, a distinction needs to be drawn between the relationship
of the Governor vis-a-vis the Executive and the relationship of the 8
Governor vis-a-vis the Legislature. Article 163 deals with the relationship
of the first category and Article 174 (among others) deals with the
relationship of the second category. We are concerned with the second
category, although the· submissions of learned counsel have roped in
Article 163 of the Constitution by contending that summoning the
Legislative Assembly is an executive act or function.
c
13 8. It is not at all necessary to enter into a debate on whether the
act or function of summoning the Assembly is an executive act or function.
Assuming it to be an executive function, summoning the Assembly cannot
be read as a 'power' conferred by the Constitution on the Governor - it
D
remains a function that the Governor performs in accordance with the
mandate of the Rules of Procedure and Conduct of Business in Arunachal
Pradesh Legislative Assembly on the advice of the Cliief Minister and in
consultation with the Speakerofthe Assembly. The unarticulated premise
is that the Governor cannot ·act' in an unregulated manner de hors any
rules of procedure in matters concerning the Legislative Assembly. The E
Governor is expected to function in accordance with the provisions of
the Constitution (and the history behind the enactment of its provisions),
the law and the rules regulating his functions. It is easy to forget that the
Governor is a constitutional or fonnal head- nevertheless like everybody
else. he has to play the game in accordance with the rules of the game -
F
whether it is in relation to the Executi\e (aid and advise of the Council of
Ministers) or the Legislature (Rules of Procedure and Conduct of
Business of the Arunachal Pradesh Legislative Assembly). This is not
to say that the GO\ernor has no powers - he docs .. but these too are
de!inc<lled by the Constitution either specifically or by necessary
implicati0n. Failure to adhere to these basic principles is an invitation to G
enter the highway to the danger zone.
139. Assuming hO\\ ever. that the Governor has the 'constitutional
power· to summon the Assembly (and that it is not merely an executive
function) the considerations at law become quite different. Undoubtedly,
no power. constitutional or othcrn isc. can be exercised in an arbitrary H
284 SUPREME COURT REPORTS [2016] 6 S.C.R.

A manner though the exercise of power, in some situations is undoubtedly
beyond judicial consideration or judicial review and at best an academic
discussion, for example the legality of using the armed forces of the
Union internationally. If the functions of the Governor were to be read
as his power, and an untrammeled one at that (in view of Article 163 of
the Constitution, as contended), then the Governor has the power to
B
literally summon the Assembly to meet "at such time and place as he
thinks fit" that is in any city and at any place other than the Legislative
Assembly building and at any odd time. This is not!~;;.; hut arbitrary and
surely, an arbitrary exercise of power is not what our Constitution makers
either contemplated in the hands of the Governor or imagined its wielding
c by any constitutional authority.
140. In the Case concerning E/ecttronica Sicu/a S.P.A. (ELS/)3 7
the International Court of Justice described arbitrariness in the following
words:
"128. Arbitrariness is not so much something opposed to a rule of
D law, as something opposed to the rule of law. This idea was
expressed by the Court in the Asylum case, when it spoke of
"arbitra1y action" being "substituted for the rule of law" (Asylum.
Judgment, I.C.J. Reports 1950, p. 284). It is a wilful disregard
of due process of law, an act which shocks, or at least surprises,
E a sense ofjuridical propriety."
141. Does the rule of law in our country permit the Governor to
throw constitutional principles and the Rules of Procedure and Conduct
of Business of the Arunachal Pradesh Legislative Assembly to the winds
and summon the Assembly to meet wherever and whenever he deems
F appropriate? Surely the answer to this must be in the negative and since
that is so, it must follow.that the 'power' apparently conferred on the
Governor is arbitrary and must be read down to at least a 'reasonable
power' to be exercised in accord and consonance with constitutional
principles, law and the rules.

G 142. On merits, it is not possible or even advisable to look into the
pros and cons of the decision taken by the Governor. All that need be
said is that the events as they occurred with great rapidity over the days
and weeks preceding the modified Order appear to be nothing more or
less than a political circus. However, what is disquieting in constitutional

H "United States of America v. Italy. I.C.J. Reports 1989. p.15
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 285
AND OTHERS [MADAN B. LOKUR, J.]

terms (and that has nothing to do with the reasons given by the Governor A
or the merits or otherwise of the decision unilaterally taken by him) is
the short shrift that the Governor gave to a possible resolution of the
Cabinet of Arunachal Pradesh. While issuing the modified Order, the
Governor concluded that that he "may not be bound by the advice the
Council of Ministers" for whatever reason. From where did the Governor
B
derive this principle and how did he dream that he could invoke the
concept of"individual judgment" should a resolution of the Council of
Ministers be placed before him - the very concept that our constitution
framers were not in favour of?
143. To make matters worse and, in a sense, humiliate the elected
government of the day, the Governor did ignore the resolution of the c
Council of Ministers taken on 14'" December, 2015 when it was placed
before him. By this time there was a complete break-down of
communications between the Governor and the elected Government and
that, among other things, led to an unsavory confrontation between the
Governor and some Cabinet Ministers. That interpersonal relationships D
of constitutional functionaries are carried out with such a complete lack
of cordiality and gay abandon is indeed unfo1iunate. The result is a
thrashing given to the Constitution and a spanking to governance. It is
precisely to avoid this that the Constituent Assembly invoked the "principle
of responsible government". Sir Alladi Krishnaswamy Aiyar, while
supporting Dr. Ambedkar's motion for adopting the Constitution ~poke E
of responsible government and the "breakdown provisions" of the
Constitution (not necessarily Article 356) on 23'd November, 1949
(virtually echoing Churchi II) as follows:
''After weighing the pros and cons of the Presidential System as
obtaining in America and the Cabinet system of Government F
obtaining in England and the Dominions, taking into account also
the working of responsible Government in the Indian Provinces
for some years and the difficulty of providing for a purely
presidential type of Government in the States in Part II, (now pait
18) this Assembly has deliberately adopted the principle of G
responsible Government both in the States and in the Centre. At
the same time the Assembly was quite alive to the fact that a
good number of States in Part IB were unaccustomed to any
democratic or responsible Government and with a view of ensure
its success and efficient working the early states of the Union
Government is entrusted with the power of intervention while there H
286 SUPREME COURT REPORTS [2016] 6 S.C.R.

A is a failure or deadlock in the working of democratic machinery.
My honourable Friend Prof. K.T. Shah in expatiating upon the
merits of the Constitutional system based upon the principle of
separation, did not fully realize the inevitable conflict and deadlock
which such a system might result in a country circumstanced as
B India is. The breakdown provisions in the Constitution are not
intended in any way to hamper the free working of democratic
institutions or responsible Government in the different units, but
only to ensure the smooth working of the Government when actual
difficulties arise in the working of the Constitution. There is no
analogy between the authority exercised by the Governor or the
c Governor-General under the authority of the British Parliament in
the Constitution of 1935 and the power vested in the Central
Government under the new Constitution. The Central Government
in India in future will be responsible to the Indian Parliament in
which are represented the people of the different units elected on
D adult franchise and are responsible to Parliament for any act of
theirs. In one sense the breakdo\vn provision is merely the
assumption ofresponsibility by the Parliament at Delhi when there
is an impasse or breakdown in the administration in the Units." 38
144. A further word may be said on "responsible government" in
addition to the views of the Constituent Assembly. The idea of a
E
responsible government was mentioned in U.N.R. Rao v. lndim
Grmdhi.3'' However, there was 110 discussion on what constitutes or is
expected of a responsible government other than an expression of a
view that the Council of Ministers must enjoy the confidence of the
House of the People.
145. In S.R. C/u11u/1111ri I'. State of Pu11jab"0 it was observed that
parliamentary democracy generally envisage~ (i) Representation of the
People, (ii) Responsible government and (iii)Ac.:c1untability of the Council
of Ministers to the Legislature \Vith regard to the characteristics of a
responsihle gnn:rnmcnt. lh1-, \ uun referred w the Co11.vtitutio11al law
G of Canada~' and the limited dis..:rction available to the Go\crnor-Cicneral ·
in the following word~:
\.• hliP.· ·J1ar l 1.a!_1J~!lL\1Jlu_lj ia. !_)_i.(.: 1r1J::-..·.d.cba!_('.~_ ~l LDG111_J_11111
· ( 19-1 t 2 "-l '( h3 1 ~ .I udgc-.. '1

,, {20111) 7 '-,( l 126
., ( .J1 h l.. ,111 .. r. 243 i. l'cicr \V. Ho!'!' Prnk"or off .a\\. n,g"'''k Hal 11 '"' ~chool. York
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 287
AND OTHERS [MADAN B. LOKUR, J.]

"The narrative must start with an exercise by the Govemor- A
General of one of his exceptional reserve powers or personal
prerogatives. In the formation of a Government it is the Governor-
General 's duty to select the Prime Minister. He must select a
person who can form a Government which will enjoy the
confidence of the House of Commons. For reasons which will be
8
explained later, the Governor-General rarely has any real choice
as to whom to appoint: he must appoint the parliamentary leader
of the political party which has a majority of seats in the House of
Commons. But it is still accurate to describe the Governor-
General's discretion as his own, because unlike nearly all of his
other decisions it is not made upon ministerial advice. c
When the Prime Minister has been appointed, he selects the other
Ministers, and advises the Governor-General to appoint them. With
respect to these appointments, the Governor-General reve11s to
his normal non-discretionary role and is obliged by convention to
make the appointments advised by the Prime Minister. If the Prime D
Minister later wishes to make changes in the Ministry, as by moving
a Minister from one portfolio to another, or by appointing a new
Minister, or by removing a Minister, then the Governor-General
will take whatever action is advised by the Prime Minister, including
if necessary the dismissal ofa Minister who has refused his Prime
Minister's request to resign." E
146. 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 the Council or Ministers. In the
event that advice was not available and responsible government was not
possiOle. the Governor could have resorted to the ··breakdown provisions" F
and left it to the President to break the impasse. The Governor had the
advice of the Council of Ministers but dwsc to 1gnllre it; he assumed
(well before the advice was tendered) that the ad\ice would be such
that he might not be bound by it the Governor. despite being the 'first
citizen' of the State. chose to take no steps to break the impasse caused
G
by a collapse of communications between him and the Chief Minister:
final I~. the GLJvcrnor took no steps to resort to th~ breakdm>n provisions
and obtain impartial a<h 1c·c frnm the Prc<>idcnt. Instead. the Governor
acted in a 111at11ier not nnl~ opposed lo a rule of law but also oppnscd to
the rule of law and. therefore, arbitrnril) nnd in a manner that certaml)
surprises ··a sense ofjuridical rmpriet) ·· II
288 SUPREME COURT REPORTS l2016] 6 S.C.R.

A 14 7. The Governor had yet another option available to him - to
invoke what is referred in Canada as the "confidence convention" in
which "'the Prime Minister and the Cabinet are responsible to, or must
answer to, the House of Commons for their actions and must enjoy the
support and the confidence ofa majority of the Members of that Chamber
to remain in office."·c If the Governor had any doubt about the
B
continuance ofa responsible government as a result of the shenanigans
that were going on in Arunachal Pradesh at the relevant time, he could
very well have required the Chief Minister to prove that he had the
confidence of the Assembly, but he chose not to exercise this option
also. In other words, all possible constitutional options were unilaterally
c discarded and disregarded by the Governor in summoning the Assembly
to meet on l 61h December, 2015 and cancelling the session fixed for 14'h
January, 2016. The actions of the Governor were certainly not in the
language of the law or the spirit of par Iiamentary democracy and
responsible government. In these circumstances, it must be held that
the Governor's unilateral act of summoning the Assembly is
D
uncon st itut ion a I.
Relations between the Governor, the Executive and the
Legislature
148. The issue may also be looked at from an entirely different
E perspective based on the provisions of the Constitution. Part VI of the
Constitution concerns the States and it consists of six chapters. Chapter
I is general and consists of one definition. Chapter II relates to the
Executive, that is, the Governor, the Council of Ministers, the Advocate
General for the State and conduct of government business. Amongst
other things, the 'eligibility' of a person to be appointed a Governor is
F provided for in this chapter. Article 158 of the Constitution provides that
the Governor shall not be a Member of Parliament or of a State
Legislature and if such a Member is appointed as a Governor, he shall
be deemed to have vacated his scat in the House when he enters upon
his office as Governor. This is significant since it insulates the Legislature
G from the Governor.
149. Article 163 of the Constitution and the discretionary exercise
of functions of the Governor comes under the heading of Council of
42
The House of Commons Procedure and Practice. Second Edition. 2009
http://1'"'1·. pa rl. ec .ca/ proccd ure-book- Ii \Tei do cu men t.aspx'?sbd id~a24e8688-cc4 5-
H 4245-8f5c-dd32f4m19bO I &sbpidx~3
NABAM REBIA, AND BA!'v1ANG FELIX v. DEPUTY SPEAKER 289
AND OTHERS [MADAN B. LOKUR, J.]

Ministers and is suggestive of executive governance or executive issues A
concerning the Council of Ministers. In this context, reference may also
be made to Article I 64 of the Constitution which provides for the
appointment of the Chief Minister of the State by the Governor and the
appointment of other Ministers on the advice of the Chief Minister. The
appointment of the Chief Minister is based on the postulate that he
B
commands or is expected to command the support of a majority of
Members of the Legislative Assembly. Therefore, it is not as if the
Governor has untrammeled discretion to nominate anyone to be the Chief
Minister of a State. Similarly, ifthe Governor chooses to 'withdraw his
pleasure' in respect of a Minister he must exercise his discretion with
the knowledge of the Chief Minister and not by keeping him in the dark c
or unilaterally. In this context, reference may be also be made to Article
165 of the Constitution which deals with the appointment of the Advocate
General for the State. He is appointed by the Governor and holds office
during the pleasure of the Governor and receives such remuneration as
the Governor may determine. It cannot be anybody's case that the
D
Governor, in exercise of his discretion, may appoint any eligible person
as the Advocate General without any reference to the Council of Ministers
and also 'withdraw his pleasure' at any time in respect of the Advocate
General thereby removing him from his office. The purpose ofall these
provisions is to indicate that the discretion given to the Governor is not
all-pervasive or all-encompassing as is suggested by learned counsel for E
the. respondents.
150. That the functions of the Governor are limited to matters of
executive governance or executive issues and the Council of Ministers
is made explicit through Article 166 of the Constitution which provides
that all executive action of the Government shall be expressed to be F
taken in the name of the Governor;" orders and instruments shall be
executed in the name of the Governo1-l• and the Governor shall make
rules for the more convenient transaction of business of the Government
and allocation of business among the Ministers "in so far as it is not
business with respect to which the Governor is by or under th is Constitution
required to act in his discretion." This clearly has reference to Article G
163 of the Constitution and must be understood as meaning that framing
the rules under Article 166(3) of the Constitution is not the discretion of
the Governor but an executive exercise undertaken by the Council of
43
A11icle 166( I) of the Constitution
"Article 166(2) of the Constitution H
290 SUPREME COURT REPORTS [2016]6 S.C.R.

A Ministers. Article 167 of the Constitution relates to the duty of the Chief
Minister of a State to communicate the decisions of the Council of
Ministers to the Governor and furnish information to the Governor.
Chapter II of Part VI of the Constitution is, therefore, quite compact
and delineates the relations between the Executive and governance of
the State.
B
151. Chapter Ill concerns itself with the State Legislature and
several aspects concerning the State Legislature. As far as the Governor
is concerned, Article 168 in this chapter of the Constitution provides that
the State Legislature shall consist of the Governor and its House(s).
[However, in view of Article 158 of the Constitution the Governor is not
c a member of the State Legislature.) His status, therefore, for lack of a
better word, is that of a constituent of the Legislature. What are his
functions in this capacity? In R"i S"lzib R"m Jmvay" K"pur the
Constitution Bench observed that: "It may not be possible to frame an
exhaustive definition of what executive function means and implies.
D Ordinarily the executive power connotes the residue of governmental
functions that remain after legislative and judicial functions are taken
away." In so far as this chapter is concerned, his functions are certainly
not legislative (those are dealt with in Chapter IV of Part VI of the
Constitution); his powers in this chapter are also ce1tainly not judicial,
and therefore clearly executive in character. What are these executive .t
E functions?
152. Amongst others, Article 174 of the Constitution provides that
the Governor shal 1summon the Legislative Assembly from time to time
I
~
•
and may prorogue and dissolve the Legislative Assembly. Summoning
the House was described by Pandit Jawaharlal Nehru in the debate on
F J6•h May, 1951 on the FirstAmendmenttothe Constitution as "an indirect
duty" of the President. He went on to say that by the President, he
meant the government of the day. Applying this to Article 174 of the
· ·constitution, the Governor is obliged to perform this indirect duty. Since
this indirect duty is executive in character, it cannot be performed except
on the aid and advice of the Council of Ministers so as to avoid a "futile
•-
G
operation" and subject to the procedure mentioned in the Rules referred
to above. Proroguing and dissolving the House must also follow a similar
procedure as summoning the House. It would be doing violence to all
canons of interpretation if the discretion of the Governor in Chapter III
is incorporated in Chapter IV and given a wider and greater interpretation
H than intended in Chapter III.
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 291
AND OTHERS [MADAN B. LOKUR, J.]

153. Addressing the House under Article 175( I) of the Constitution A
or making a special address under Article 176 of the Constitution would
also be executive functions performed by the Governor on the aid and
advice of the Council of Ministers. There can hardly be any dispute on
this. Sending a message to the House under Article 175(2) of the
Constitution might not strictly be an executive function but would fall in
B
a separate category altogether which might be described as having a
quasi-executive or quasi-legislative flavour. This entitlement specifically
provided for in the Constitution is exercised by the Governor as a
constituent of the Legislature and therefore not traceable to the aid and
advise of the Council of Ministers.
154. There are other executive fµnctions that a Governor is
c
required to perform with respect to the Legislature. Some of these are
provided for in Article 180 of the Constitution (referred to above), Article
184 of the Constitution (which pertains to the Legislative Council and is
in pari materia with Article 180 of the Constitution) and recruitment
and conditions of service of secretarial staff of the Legislative Assembly D
or the Legislative Council as the case may be (Article 187 of the
Constitution). If the provisions of Article 163 of the Constitution are
read into all these executive functions relatable to the Legislature and
the exercise of discretion of the Governor cannot be questioned (as
contended by learned counsel for the respondents) then the Legislature
could and would be dominated by the Governor-something completely E
unthinkable in a parliamentary democracy, where the Governor cannot
dominate the Executive but could dominate the Legislature!
155. It is not necessary for the present purposes to delve into the
Governor's role in legislative or quasi-legislative issues, such as assent
to Bills (Article 200 and 20 I of the Constitution), procedure in financial F
matters and legislative powers of the Governor (Chapter IV). Nor is it
necessary to deal with the relations between the Governor and the
Judiciary (Chapter V and Chapter VI of Part VI of the Constitution).
All that need be said is that except in specified matters, executive functions
of the Governor whether relating to governance issues or issues pertaining G
to the Legislature are required to be performed by him on the aid and
advise of the Council of Ministers and the Rules framed by the House.
No discretion is available to him in these matters since he is bound by
the advice given to him by the Council of Ministers and Article 163 of
the Constitution cannot be imported into these matters. The only discretion
H
292 SUPREME COURT REPORTS [2016] 6 S.C.R.

A available to the Governor under Article 163 of the Constitution is in respect
of matters provided for by or under the Constitution not relatable to the
Council of Ministers and the Judiciary.
156. In the view that I have taken, the question relating to the
interpretation of Article 175 of the Constitution and the validity of the
B message of the Governor becomes academic or does not arise and it is
not necessary or even advisable to answer it. This Court has held on
several occasions that it is inexpedient to delve into problems that do not
arise and express an opinion thereon. 45
157. Therefore, I answer the first three questions in the negative
c and hold that the fourth question does not arise in the circutrstances of
the case.
158. The fifth and final question in these appeals is: Whether the
Deputy Speaker of the Legislative Assembly of Arunachal Pradesh was
entitled at law to set aside the order of the Speaker of the Legislative
D Assembly of Arunachal Pradesh by which the Speaker had disqualified
fourteen Members of the Legislative Assembly of Arunachal Pradesh
(including the Deputy Sp..:aker) under the Tenth Schedule of the
Constitution?
159. The question here is not whether the disqualification of
E fourteen members of the Legislative Assembly is valid or not. That was
a matter pending consideration in the Gauhati High Court when judgment
in these appeals was reserved, but has since been decided. We are not
concerned with the decision of the Gauhati High Court or the power or
propriety of the decision of the Speaker. The narrow question is whether
the Deputy Speaker could, by his order dated l 5'h December, 2015 set
F aside the order of the Speaker also dated 15'h December, 2015
disqualifying fourteen members of the Legislative Assembly including
the Deputy Speaker himself.
160. The Speaker gave a notice to fourteen members of the
Legislative Assembly on 7'11 December, 2015 requiring them to show
G cause why they should not be disqualified under the Tenth Schedule of
the Constitution. Thereafter, by an order dated l 5'h December, 2015 the
Speaker disqualified them from their membership in the Legislative
Assembly. As mentioned above, the correctness of this order and the
procedure followed has now been decided by the Gauhati High Court
H " Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., ( 1983) I SCC 14 7
NABAM REBIA, AND BAMANG FELIX v. DEPUTY SPEAKER 293
AND OTHERS [MADAN B. LOKUR, J.]

and the correctness of that decision is not before us. A
161 . The Deputy Speaker passed an order on l 5'h December,
2015 inter alia, on the ground that the Speaker lacked the competence
to pass the disqualification order and that he had not followed the
constitutional and legal procedures. He had had lost his competence to
pass the disqualification order since a notice of his removal dated I 9'h B
November, 2015 was pending and was to come up before the Legislative
Assembly on I 61h December, 2015. In passing his order of l 5'h December,
20 I 5 the Deputy Speaker purported to derive his power from the message
given by the Governor to the Legislative Assembly on 9th December,
2015 requiring the Deputy Speaker to conduct the proceedings of the
House on the resolution for removal of the Speaker. What is important
c
to note is that the Deputy Speaker was to preside over the House on
I 61h December, 2015. He ce11ain ly had no derivative power from the
message of the Governor dated 91h December. 2015 to take over the
functions of the Speaker or to sit in judgment over the decision of the
Speaker of I 5•h December, 2015. D
162. That apart, it is now well settled by the decision of this Court
in Kilzoto Hollo/um v. Zac/1i/llrn 46 that the Speaker while acting under
the Tenth Schedule of the Constitution acts as a Tribunal and his decision
can be challenged only in a court exercising constitutional jurisdiction.
It was held in Kasltinatlt Jalmi v. Speaker' 7 that even the Speaker E
does not have the power to review the decision taken by him under the
Tenth Schedule of the Constitution. Under these circumstances, there
is absolutely no question of the Deputy Speaker setting aside the order
of the Speaker passed under the Tenth Schedule of the Constitution.
163. It is also important to note that the Deputy Speaker was F
himself disqualified from the membership of the Legislative Assembly
by the Speaker and he could certainly not have set aside the order passed
against him and in respect of which he would be the beneficiary. There
is no doubt that the Deputy Speaker had no authority at all to set aside
the decision of the Speaker passed under the Tenth Schedule of the
Constitution. The fifth question is answered in the negative. G
164. In the view that I have taken, I am of opinion that the view
expressed by my learned Brothers relating to the power or propriety of
the Speaker taking a decision under the Tenth Schedule of the Constitution
" 1992 Supp.(2) sec 651
"(1993) 2sec103 H
294 SUPREME COURT REPORTS [2016] 6 S.C.R.

A with regard to the fourteen members of the Legislative Assembly does
not at all arise in these appeals.
Final order
165. The appeals are allowed. The impugned judgment and order
of I3'h Janua1y, 2016 passed by the Gauhati High Court is set aside.
8 The modification Order of 91h December, 2015 passed by the Governor
of Arunachal Pradesh is unconstitutional and is set aside and the order
of the Deputy Speaker dated 15'h Decembe.r, 2015 setting aside the order
.of the Speaker of the same date is ·also set aside.
Devika Gujral Appeal sallowed.
c