The monsoon session of the Parliament that began last Monday has been smoother than expected. Thanks to the compromise Modi made with the opposition to discuss several politically burning issues, including the Supreme Court’s Arunachal Pradesh verdict. The verdict declared the imposition of President’s rule in Arunachal Pradesh as “unconstitutional and illegal”.
Quickly, political parties and media houses queued up to call it "a severe blow to the ruling BJP." According to Kejriwal, the verdict was a “slap on the face of the Centre." Sonia Gandhi called it "a historic verdict" against the “unconstitutional removal of a democratically elected Government”.
But it is far from the truth to state that all was well in the border state that damned the imposition of President’s rule.
In December 2015, when certain congress MLAs defected from the party under the leadership of Kalikho Pul, he had 43 MLAs behind him while the Congress just had 15. This crisis led to the imposition of President's rule. Pul organized the People's Party of Arunachal Pradesh and formed the Government with support from BJP.
The verdict was meant to clear things up and set an Arunachal Pradesh Assembly floor test. But the events that unfurled after the verdict are testimonial to the political turmoil in the state that led to the imposition of President’s rule in the first place.
Two people claimed to be the CM of the State the day after the verdict. One was Nabam Tuki, who was the previous CM before the imposition of President's rule in January this year. The other was Kalikho Pul. He maintained that the verdict had no bearing on his Chief Ministership as “the Government that we formed was not based on the decisions of the two day assembly session (on which the verdict was based) because we knew some wrong could be committed."
During the floor test, when the Congress Government had to prove its majority in the assembly, the PPA merged with Congress. Quite unexpectedly Pema Khandu, a Congress MLA, was selected as the Chief Minister.
Congress proudly claimed to have united the party, but Pul stated that "the Congress had misinterpreted the Supreme Court judgment and scared the PPA MLAs into believing that they would be disqualified and that they would lose their membership if they voted against them during the floor test." This he said to the media immediately after Khandu’s swearing in ceremony.
So what made the Supreme Court strike down the imposition of President’s rule? According to Article 356 of the Constitution of India, the President may proclaim his rule in a State if on a report from the Governor, he is satisfied that the Government of the State cannot be carried on according to the Constitution. But the Supreme Court’s verdict does not get into the question of whether this was the case in Arunachal Pradesh. So it is wrong to say that the verdict had slammed the Central Government (read BJP)’s attempt to “uninstall a constitutionally elected Government”.
Legally speaking, in reviewing “executive actions” such as President's rule, the Supreme Court and the High Courts are not concerned with the correctness of such actions. They don’t even get into the merits of it. Instead, the courts are only concerned with how the decision is arrived at.
So the Supreme Court’s verdict is largely based on how the Governor, Rajkhowa, exercised his powers immediately before the President’s rule was imposed. Rajkhowa’s biggest mistake was to have pre-poned the assembly session by a month from January earlier this year to December. Thus he did not give Tuki an opportunity to prove his majority. The Supreme Court examined the Governor’s Constitutional powers about assembly sessions and his powers to disqualify the Speakers. They arrived at the conclusion that the Governor had acted in a “biased” manner, vitiating the imposition of the President’s rule.
This is clear from the observation of the Supreme Court that “the Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties.”
Legally, an administrative authority has to be unbiased in his actions. The real test here is not whether he is biased. It is difficult to prove the state of mind of a person. What the Court sees is whether there is reasonable grounds for believing that he was likely to have been biased.
In the past, the Supreme Court has refused to interfere with “Executive actions” when the decision was arrived at in a proper manner. In the popular “Bank Nationalization” case, the Supreme Court determined that Indira Gandhi’s decision to nationalize more than a dozen private banks was unconstitutional and illegal. But in the second nationalizaion, the Supreme Court refused to intervene. What was the difference?
In the first case, the decision was not based on whether nationalization of the banks is illegal or not. But rather, on how nationalization was implemented. In the second case, reasonably adequate compensation was provided to the banks, so the Supreme Court declared the nationalization very much constitutional & legal.
Similarly, if Tuki had taken the floor test in January instead of being rushed one month earlier by Rajkhowa, Congress would have failed the test and Khaliko Pul’s PPA could have been merged with the BJP as planned. He wouldn't have needed to take the recourse to imposition of President’s rule. In his article in the Sunday Express on the 24th of July, 2016, TJS George states that “Capturing few States ruled by Congress has been priority of the BJP’s strategist. If they were sensible enough to bide their time, the Congress itself would have obliged them."
The Congress party should now take stock of the situation and settle in-party fighting. Otherwise its tactics in scaring its MLAs of disqualification would not work in the long run. BJP has to take lessons and make wise moves when seizing opportunities to build political inroads. Similar blows will change political equations and prove fatal to the party.