Nabam Rebia v. Deputy Speaker

In Arunachal Pradesh, the Congress government led by Chief Minister Nabam Tuki had a huge majority in a 60-member Assembly. By 2015, 21 Congress MLAs, 11 BJP MLAs and 2 independent MLAs had turned against the Chief Minister.

In October 2015, 20 Congress MLAs and 2 independent MLAs wrote to the Governor complaining against the government. On 19 November 2015, 13 MLAs (11 BJP and 2 independents) gave notice of a resolution to remove the Speaker. They sent a copy to the Governor and asked him to call the Assembly session early. Twenty-one Congress MLAs refused to attend the party meeting and accused the Chief Minister of wasting money and mismanaging funds.

On 9 December 2015, the Governor advanced the Assembly session from 14 January 2016 to 16 December 2015. He did this without consulting the Chief Minister or the Council of Ministers. He also directed that the resolution to remove the Speaker be taken up first.

On 15 December 2015, Speaker Nabam Rebia disqualified 14 rebel Congress MLAs. On the same day, the Deputy Speaker set aside that disqualification order. The next day, at a sitting held outside the Assembly building and chaired by the Deputy Speaker, the resolution removing the Speaker was passed.

The Speaker challenged the Governor's actions before the Gauhati High Court as a misuse of power. The High Court upheld the actions of the Governor and the Assembly. It held that the Governor's discretion under Article 163 and legislative proceedings under Article 212 were outside judicial review. The matter then reached the Supreme Court in appeal.

1. Was the Governor's decision to prepone the Assembly session, without the aid and advice of the Council of Ministers, constitutional?

2. Can the Speaker pass a disqualification order under the Tenth Schedule while a motion for his own removal is pending?

The case also raised the wider questions of how much discretion the Governor has and whether his actions are subject to judicial review.

Petitioners (the side of the Speaker and the Chief Minister): The Governor crossed his constitutional limits and acted unconstitutionally. Article 163(2) was misused, because the Governor cannot claim discretion in every matter. Governance must happen through the elected Council of Ministers, since the Governor holds a nominated post. Linking Article 174 to a general discretionary power of the Governor would be a wrong interpretation.

Rebel MLAs: A Speaker facing a pending notice for his own removal cannot decide disqualification petitions, because he is himself an interested party.

Respondents: They relied on Article 163. They accepted that the Governor generally acts on the aid and advice of the Council of Ministers. However, they argued that Article 163(2) gives him a discretion that lies outside judicial review. They also argued that the power to summon the Assembly under Article 174 falls within his discretion.

The Supreme Court quashed the Governor's order of 9 December 2015.

On the Governor:
- He cannot prepone a session without consulting the Chief Minister and the Council of Ministers.
- Reading Article 174 together with Article 163, the power to summon, prorogue and dissolve the Assembly is normally to be used on aid and advice.
- His discretionary power is limited, and he cannot give it a broad interpretation on his own.
- He cannot interfere with the Assembly's agenda or decide what is taken up first.
- His actions are subject to judicial review and are not immune from it.

The Court declared the Governor's message, and all actions relating to that sitting of the Assembly, unconstitutional.

On the Speaker: When a notice for the Speaker's removal is pending, constitutional propriety demands that he should not decide disqualification of MLAs under the Tenth Schedule. Doing so would be unconstitutional.

Result: The Court restored the status quo ante, that is, the position as it stood on 15 December 2015, and reinstated the government led by Nabam Tuki.

Aftermath: Within a few days, Congress chose Pema Khandu as its leader in place of Nabam Tuki. A few months later, large-scale defections took place. The political effect of the judgment was almost reversed, but its constitutional principle remained intact.

Article 163(1) of the Constitution of India; Article 163(2); Article 174; Article 179(c); Article 181; Article 212; Article 190; Article 191; Tenth Schedule of the Constitution of India

This case is a landmark on federalism and the office of the Governor. It shows in a practical way that the Governor's discretion is limited and subject to judicial review. It is also notable because the Court reinstated a government that had already been removed, which was an extraordinary step.

Students must also know the Speaker principle and its later history. In 2023, in the Subhash Desai case relating to Maharashtra, a five-judge bench said this principle needs reconsideration. The concern was that MLAs could give a removal notice simply to stall their own disqualification hearing. The question was referred to a seven-judge bench.

Exam keywords: Articles 163 and 174 read together, the Governor's limited discretion, judicial review, status quo ante, and the Speaker principle now before a larger bench.

Hypothetical: In an imaginary State, Prince is the Chief Minister and Hansa is the Governor. Some MLAs give notice to remove Speaker Farhan. Hansa, without consulting Prince or the Council of Ministers, advances the Assembly session and orders that Farhan's removal be taken up first.

Following Nabam Rebia, a court could quash Hansa's order. Under Articles 163 and 174 read together, summoning the Assembly is normally done on ministerial advice, and the Governor cannot fix the House's agenda.

Suppose Farhan, while his removal notice is pending, disqualifies rebel MLAs Aadil and Zoya under the Tenth Schedule. Under the Nabam Rebia principle, he should not do so. This principle is now under reconsideration by a larger bench.