Quick answer
No. In Nabam Rebia and Bamang Felix v. Deputy Speaker (13 July 2016), a five-judge Constitution Bench of the Supreme Court held that the Governor of Arunachal Pradesh acted unconstitutionally on 9 December 2015. Without the aid and advice of the Council of Ministers, he advanced the Assembly session and issued a message fixing how the House should take up the resolution to remove the Speaker. Summoning the House under Article 174 and sending messages under Article 175 are done on ministerial advice, not in the Governor's discretion under Article 163. The Court quashed his actions and restored the position as on 15 December 2015.
Facts in brief
On the advice of the Chief Minister, the Governor had summoned the 6th session of the Assembly to meet on 14 January 2016. After a split in the ruling party, 13 MLAs gave notice on 19 November 2015 of a resolution to remove Speaker Nabam Rebia under Article 179(c). By an order and a message dated 9 December 2015, the Governor advanced the session to 16 December 2015 and directed that the removal resolution be the first item of business. On 15 December 2015, the Speaker disqualified 14 MLAs under the Tenth Schedule. The Gauhati High Court disposed of the writ petitions challenging these steps by a common order dated 13 January 2016. Nabam Rebia and Bamang Felix appealed to the Supreme Court.
The case
Nabam Rebia and Bamang Felix v. Deputy Speaker, (2016) 8 SCC 1, Supreme Court of India, 13 July 2016. Bench: J.S. Khehar, Dipak Misra, Madan B. Lokur, Pinaki Chandra Ghose and N.V. Ramana, JJ. Khehar, J. wrote the leading judgment for himself, Ghose and Ramana, JJ. Dipak Misra, J. concurred and added his views on Article 179(c). Lokur, J. was in general agreement and gave separate reasons. The appeals were allowed and the High Court judgment was set aside.
Key holdings
- Article 163: the Governor ordinarily acts on the aid and advice of the Council of Ministers. His discretion is limited to matters where he is required by or under the Constitution to act in his discretion. It is not a general personal power.
- Article 174: the order advancing the session from 14 January 2016 to 16 December 2015 violated Article 163 read with Article 174. The Governor cannot summon the House "in his discretion".
- Article 175: the message directing how the House should conduct its proceedings violated Article 163 read with Article 175, and was quashed.
- Consequences: all steps the Assembly took under the order and message were set aside, and the status quo ante (earlier position) as on 15 December 2015 was restored.
- Speaker and the Tenth Schedule: the leading judgment also held that a Speaker cannot decide disqualification petitions under the Tenth Schedule while a notice of resolution for the Speaker's own removal is pending.
Two separate issues compared
| Issue | Holding in Nabam Rebia (2016) | Status today |
|---|---|---|
| Governor advancing a session and directing House business | Unconstitutional without ministerial advice (Articles 163, 174 and 175) | Not part of the question framed for the 2023 reference |
| Speaker facing a removal notice deciding disqualification petitions | Not permitted | Correctness referred to a seven-judge bench in Subhash Desai (2023) |
Neha is Chief Minister of a State. On her advice, the Governor summons the Assembly for March. Some dissident MLAs ask the Governor to call the House in January and list a resolution to remove the Speaker first. If the Governor does this on his own, without Neha's Council of Ministers advising it, the order and the message are open to challenge under Nabam Rebia.
Later development
In Subhash Desai v. Principal Secretary, Governor of Maharashtra (11 May 2023), a five-judge bench found a prima facie conflict between Nabam Rebia's Speaker rule and Kihoto Hollohan (1992). It referred to a seven-judge bench the question of whether a notice of intention to move a resolution to remove the Speaker stops the Speaker from deciding disqualification petitions. Students should check whether the larger bench has since decided the question. For more on the Governor's powers, see the Law Easy note on Rameshwar Prasad v. Union of India (2006).
Exam point
Nabam Rebia (2016): the Governor cannot summon, advance or set the business of an Assembly session on his own. Articles 174 and 175 are exercised on ministerial advice under Article 163. Its separate rule that a Speaker facing a removal notice cannot decide disqualification petitions was referred to seven judges in 2023.
